I will be speaking on a panel addressing the issues in the Google Book Search (f/k/a Google Print) cases at noon on November 29, 2005 at the John Marshall Law School in Chicago. If you’re in the neighborhood, be sure to stop by – it should be an interesting discussion. I’m honored to be on the same panel as professors Leslie Reis and David Sorkin of John Marshall, as well as Bill Keefe from the school’s library staff.
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Eighth Circuit affirms conviction in Best Buy e-mail extortion case
Defendant Ray was convicted in the U.S. District Court for the District of Minnesota for extortion, and was sentenced to eighteen months in prison for sending e-mail messages to Best Buy threatening to exploit a breach in its computer security. He appealed his conviction to the Eighth Circuit, arguing, among other things, that the evidence presented by the government was insufficient to show that Ray sent the messages.
The court affirmed the conviction, holding that the evidence supported the verdict. In reaching this conclusion, the court noted that Ray had admitted using his computer to log onto the Internet several times a day, and that three of the e-mail messages sent to Best Buy were traced to the IP address he was using at the very time the extortion messages were sent. Other evidence supported the conclusion that Ray was responsible for the messages.
One of Ray’s further arguments was that the prosecutor improperly argued criminal propensity in her closing argument by pointing out that Ray acquired domain names to which he had no legitimate interest after being notified that such conduct was improper. Without determining whether the prosecutor erred in making this argument, the court concluded that such a comment “was not so offensive that it deprived Ray of a fair trial.”
U.S. v. Ray, — F.3d —, 2005 WL 3110595 (8th Cir., Nov. 22, 2005).
State consumer fraud action unavailable to nonresident website user
Plaintiff Shaw, a U.S. citizen but resident of London, used Hyatt International Corporation’s website to make a reservation for three nights in the Ararat Park Hyatt in Moscow, Russia. On the website, Hyatt quoted Shaw a rate of $502 USD per night. When checking out of the hotel, however, Shaw was charged some 15% more than the quoted price, allegedly because of an inflated exchange rate Hyatt used to convert between dollars and rubles.
Shaw filed suit against Hyatt in federal court in Chicago, alleging two causes of action under Illinois law: (1) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act 815 ILCS 505/1 et seq. (“ICFA”), and (2) common law unjust enrichment. Hyatt moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The court granted the motion and dismissed the complaint.
In dismissing Shaw’s ICFA claim, the court applied the test set forth in the recent Illinois Supreme Court decision of Avery v. State Farm Mut. Auto Ins. Co., 835 N.E.2d 801 (Ill., 2005) which held that a nonresident plaintiff may sue under the ICFA only if the fraudulent transaction occurred “primarily and substantially” within Illinois. In the present case, the court found that:
[T]he overwhelming majority of the circumstances relating to the transaction between Plaintiff and Hyatt concern events outside of Illinois. Even assuming, as the Court must for purposes of a motion to dismiss, that Hyatt’s currency inflation scheme originated in its principal place of business in Illinois, Avery makes clear that this fact alone does not warrant application of the ICFA.
The court went on to dismiss Shaw’s unjust enrichment claim, because the “Terms and Conditions” displayed on the Hyatt website at the time of the reservation were an express agreement between Shaw and Hyatt. Because the specific transaction giving rise to the dispute was governed by an express agreement, the extra-contractual claim for unjust enrichment was unavailable.
Shaw v. Hyatt International Corp. 2005 WL 3088438 (N.D.Ill., November 15, 2005).
InternetCases.com Podcast — November 20, 2005
Cindy Cohn Part II
This edition of the InternetCases.com Podcast is Part 2 of the audio from a talk given by Cindy Cohn, the legal director and general counsel for the Electronic Frontier Foundation. Ms. Cohn spoke to a meeting of the Internet Law Committee of the Intellectual Property Law Association of Chicago (“IPLAC”) on November 4, 2005. Ms. Cohn discussed issues relating to file sharing — in particular, the Grokster decision, as well as actions taken by the entertainment industry against individual file-sharers.
This Part 2 is the question and answer sesssion from the talk.
Download the podcast
Running time: 39:30
File size: 13.5 MB
Music courtesy of Blandy under a Creative Commons license.
If you enjoy listening to the InternetCases.com Podcast, please vote for it at Podcast Alley.
InternetCases.com Podcast — November 9, 2005
Cindy Cohn Part I
This “special edition” of the InternetCases.com Podcast is the audio from a talk given by Cindy Cohn, the legal director and general counsel for the Electronic Frontier Foundation. Ms. Cohn spoke to a meeting of the Internet Law Committee of the Intellectual Property Law Association of Chicago (“IPLAC”) on November 4, 2005. Ms. Cohn discussed issues relating to file sharing — in particular, the Grokster decision, as well as actions taken by the entertainment industry against individual file-sharers.
The talk is being presented here at InternetCases.com in two parts. This first part is Ms. Cohn’s main talk. The question and answer sesssion (edited for brevity and understandability) will be posted as Part 2 at a later date.
This was a lunchtime meeting, so please excuse the sound in the backgroud of soda cans opening, and other general sounds such as papers rattling, etc.
Download the podcast
Running time: 34:08
File size: 11.7 MB
Music courtesy of Blandy under a Creative Commons license.
If you enjoy listening to the InternetCases.com Podcast, please vote for it at Podcast Alley.
Federal court permits service of process on Australian defendants by e-mail
A recent case from the U.S. District Court for the Northern District of West Virginia addresses the novel question of when a plaintiff can obtain service of process over a defendant in another country by e-mail.
Plaintiff Williams sued numerous defendants whom she alleged conspired to defame her. Three of the defendants were residents of Australia, and Williams’s efforts of obtaining service by traditional means were unsuccessful. She petitioned the court to allow her to obtain service by alternate means, including e-mail, pursuant to Fed. R. Civ. P. 4(f)(3). Because Williams had demonstrated her good faith efforts to serve the Australian defendants by traditional means, and because her proposed efforts of service through e-mail were reasonable, the court granted the motion.
The court went through a two-step process to determine that service of process by e-mail would be proper. First, it concluded that given the “particularities and necessities” presented from the near impossibility of serving the evasive defendants, alternate means of service were warranted. The court then “examined the contours” of Rule 4(f)(3) to determine which alternate means would satisfy due process concerns.
Rule 4(f)(3) provides three general means for effecting service of process on defendants outside the United States. Paraphrased, these means are:
- Any internationally agreed means, such as the Hague Convention
- Any manner authorized by the laws of the foreign country
- Any means not prohibited by international agreement and directed by the court
Adopting the standard first applied in the Ninth Circuit decision of Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002), the court held that “Rule 4(f) does not denote any hierarchy or preference of one method of service over another.” Because Australia and the U.S. have no agreement between them regarding service of process, the court was free to consider any means for service reasonably calculated to alert the defendants of the action.
Given that the defendants were “sophisticated participants in e-commerce,” and that plaintiff had established the reliability of e-mail addresses used by the defendants, alternate service by e-mail was permissible. The reliability of service by e-mail was enhanced by Williams’s proposal to use an online service that provided encryption and digital confirmation of delivery.
Williams v. Advertising Sex LLC et al., — F.R.D. —, 2005 WL 2837574 (October 25, 2005).
Peer-to-peer Litigation Summit planned for Chicago on November 3, 2005
If you’re interested in the legal issues surrounding file-sharing in a post-Grokster world, and will be in Chicago on November 3, be sure to attend the First Annual P2P Litigation Summit scheduled to take place at Northwestern University School of Law. Here’s an announcement from attorney Charles Lee Mudd Jr., one of the event’s primary organizers:
On November 3, 2005, the Electronic Frontier Foundation and I (through my firm Privacy Resolutions P.C.) will co-sponsor the First Annual P2P Litigation Summit in Chicago, Illinois at the Northwestern University School of Law. The daylong conference brings together public and private defense attorneys, clients, investigators, advocates, and academics to discuss the latest developments in peer-to-peer litigation. How do the RIAA and MPAA go about identifying plaintiffs? What are the most effective legal strategies and tactics? Is it better to settle immediately, or fight it out in the courts? How is this impacting the individuals sued? What is the role of ISPs in this quagmire? Should Congress step in and, if so, what legislation is needed? Are there other ways to compensate authors for their works?
A complete agenda and registration information can be found at http://www.p2plitigationsummit.com. Registration is $150.00 per person and $40.00 per person for students.
Court tosses author’s suit against Amazon.com over negative book reviews
Plaintiff Hammer, a self-published author of books on handwriting analysis and hypnosis, sued Amazon.com, alleging causes of action for defamation, copyright infringement, breach of contract, violation of the First Amendment right to free speech, discriminatory business practices, and conversion. As characterized by the court, the plaintiff essentially claimed that Amazon had unlawfully colluded with an individual who posted several negative reviews of plaintiff’s books. The plaintiff also claimed that Amazon acted unlawfully by removing plaintiff’s books from its listings.
Amazon moved to dismiss the plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6), and the court granted the motion. It held that the allegations of defamation could not stand, as the negative reviews could not be construed as anything other than opinion. The claim of copyright infringement failed because the complaint contained no allegations that Amazon had copied the plaintiff’s work. There could not be any breach of contract, as Amazon was clearly within its rights to terminate its contract with the plaintiff after providing advance notice (which Amazon did). The First Amendment claim failed as a matter of law because Amazon was not a state actor. The discriminatory business practices claim was dismissed because Amazon had the right to independently choose not to do business with the plaintiff. Finally, the court dismissed the conversion claim because the plaintiff had merely re-styled a contract claim, thus that count was preempted.
In addition to dismissing the plaintiff’s complaint in its entirety, the court entered a permanent injunction, enjoining the plaintiff from commencing any subsequent action relating to book reviews on Amazon.com or Amazon’s refusal to do business with him.
Hammer v. Amazon.com, — F.Supp.2d —, 2005 WL 2467046 (E.D.N.Y., Sept. 27, 2005).
Delaware decision defines standards for protecting anonymous Internet speech
The recent case of Doe v. Cahill, coming to us from the Supreme Court of Delaware, illustrates a court’s willingness to ensure adequate safeguards to protect anonymous speech on the Internet.
In September of 2004, an anonymous visitor to a Smyrna, Delaware community weblog posted comments about city councilman Patrick Cahill, which Cahill believed to be damaging to his reputation. Cahill filed a defamation lawsuit. Because he did not know the identity of the anonymous commenter, he filed suit against “John Doe,” and began procedures under Delaware law to discover Doe’s true identity. Cahill learned that Doe used Comcast as an Internet service provider, and obtained a court order requiring Comcast to disclose Doe’s real name.
As required by the federal Cable Communications Policy Act of 1984, at 47 U.S.C. §551(c)(2), Comcast notified Doe of the request for information about his identity. [More on the Cable Communications Policy Act.] In response, Doe sought an emergency protective order to bar Comcast from turning over his information. The trial court denied Doe’s request for a protective order, and held that Cahill could obtain Doe’s identity from Comcast. Doe appealed directly to the Delaware Supreme Court. On appeal, the Court reversed the lower court’s decision.
The Supreme Court determined that the trial court had applied too low a standard in testing whether Comcast should be ordered to turn over Doe’s identity. The trial court had applied a “good faith” standard, namely, that disclosure was warranted because Cahill had established through his pleadings that he had a legitimate, good faith basis on which to bring the defamation claim.
The Supreme Court held that such a low standard was not sufficient to protect one’s right to speak anonymously. The lower, good faith standard might encourage meritless lawsuits brought merely to uncover the identities of anonymous critics. Accordingly, the Supreme Court adopted a standard “that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.”
The Court held that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process, he must come forth with facts sufficient to defeat a summary judgment motion. Said another way, before a Delaware court will order an anonymous speaker to be unmasked, the plaintiff has to present evidence creating a genuine issue of material fact for each element of the defamation claim.
Applying that standard to the present case, the court held that “no reasonable person could have interpreted [Doe’s] statements to be anything other than opinion.” The court observed that its conclusion was supported by the “unreliable nature of assertions posted in chat rooms and on blogs.” The case was dismissed.
Doe v. Cahill, — A.2d —, 2005 WL 2455266 (Del., October 5, 2005).
[Full text of decision in PDF]
Legal blogging ethics in this month’s ABA Journal
American Bar Association members, be sure to check out the October 2005 issue of the ABA Journal, containing the article “Watch What You Say” (p. 59) which features, among others, noted law blogger Ben Cowgill. An online version of the article (minus Ben’s picture which appears on p. 62 of the magazine) is available here.