Blog

July 20, 2005 Copyright, Privacy

Supreme Court nominee John Roberts and the law of the Internet

John Roberts, President Bush’s nominee for the Supreme Court has only been on the bench since 2003, when he was appointed to the U.S. Court of Appeals for the District of Columbia Circuit. In that time, it does not appear that Judge Roberts authored any opinions dealing squarely with what most would consider “Internet law.”

Roberts was on the panel of judges (but not the author of the opinion) in the case of Recording Indus. Assn. of America, Inc. v. Verizon, 351 F.3d 1229 (D.C.Cir., 2003), which garnered a significant amount of attention upon its pronouncement. In that case, the Court of Appeals reversed the decision of the district court which had denied Verizon’s motion to quash subpoenas issued by the RIAA. The RIAA had issued such subpoenas pursuant to the Digital Millenium Copyright Act (“DMCA”), seeking to learn the identity of accused file sharers.

The court held that under the DMCA, a subpoena could issue only to Internet service providers that actually stored infringing material on their servers. Because Verizon was acting as a mere “conduit” for data transferred between Internet users, the subpoenas should not have issued.

Of course, the Grokster opinion has changed the overall landscape of potential liability for copyright infringement over peer-to-peer networks. The author of this weblog will defer to more knowledgeable sources rather than speculate on how a Supreme Court Justice Roberts would rule on such a matter.

July 19, 2005 Miscellaneous

If the CIA cares about the environment, it apparently doesn’t want you to know about it

Court holds that CIA violated provision of Energy Policy Act, ordering publication of information regarding acquisition of alternative fuel vehicles.

The Energy Policy Act of 1992, 42 U.S.C. §13211 et seq., requires federal agencies to purchase a minimum number of alternative fuel vehicles (“AFVs”) when adding to their fleets of automobiles. To ensure compliance with this environmentally-friendly requirement, 42 U.S.C. §13218 calls for federal agencies to prepare annual reports to Congress summarizing their compliance with the AFV purchasing requirements. These annual reports must be posted “on a publicly available website on the Internet.” 42 U.S.C. 13218(b)(3).

For the past six years, the CIA has apparently been too busy with the war on terror and other pressing matters to concern itself with the reporting requirements of the Energy Policy Act. Certain environmental groups noticed this, and filed suit in federal court in California, claiming that the agency (and 12 other agencies as well) had failed to properly make the AFV compliance information available online.

The plaintiffs filed a motion for summary judgment, claiming that there was no genuine issue of material fact regarding the failure of the various agencies to meet the reporting requirements. Although the court denied the motion as to the other 12 agencies (their reporting was at least somewhat sufficient), the court found that the CIA “essentially conceded that it failed to prepare or publish any compliance reports required under the [Energy Policy] Act.”

Accordingly, the court held that the CIA had not met its reporting obligations under the Act, and ordered it to publish on the Internet no later than January 31, 2006 information regarding its acquisition of AFVs during the past six years.

Center for Biological Diversity v. U.S. Dept. of Energy et al., 2005 WL 1656881 (N.D. Cal., July 14, 2005).

July 15, 2005 Ethics

School board email did not violate Sunshine Law

Chris Heather, a member of Ohio’s Northwest Local School District Board of Education, wrote a newspaper column criticizing past actions of the board, calling on the public to support two non-incumbents in the next election. Bill Lambert, another member of the board, wrote an email to two other school board members discussing factual inaccuracies in Heather’s letter and suggesting that the other members draft a response.

Plaintiff Haverkos, who as the court noted “seem[ed] to have a long history of opposition to the school board,” filed suit against the board alleging that the email communication and subsequent actions by the members of the board violated Ohio’s “Sunshine Law,” R.C. 121.22 et seq. That law requires, among other things, that public officials conduct all deliberations on official business only in open meetings.

The trial court had held that sending the email was a violation of the Sunshine Law, and had awarded summary judgment in Plaintiff Haverkos’s favor. At issue on appeal was whether the email could be considered a “discussion” under the Sunshine Law and thus subject to the law’s provisions. The appellate court reversed the trial court, holding that Ohio’s Sunshine Law does not cover email communications. Furthermore, the subject of the email was limited to election politics, not official school board business.

Haverkos v. Northwest Local Sch. Dist. Bd. of Educ., 2005 Ohio App. LEXIS 3237 (Ct. App. Ohio, July 8, 2005).

July 14, 2005 Spam

Leaving a thin slice: CAN-SPAM does not completely preempt Washington state law

Plaintiff Gordon sued defendant Impulse Marketing, an apparent source of unwanted email. Gordon brought the lawsuit in federal court, but alleged violations of the state of Washington’s Commercial Electronic Mail Statute, RCW §19.190 et seq. and Washington’s Consumer Protection Act, RCW §19.86 et seq.

Impulse moved to dismiss, arguing that the federal CAN-SPAM Act, 15 U.S.C. §7701 et seq., preempted the state statutes under which Gordon had brought the suit. The court rejected Impulse’s argument and denied the motion.

By its own terms, the CAN-SPAM Act “supersedes” any state law that “expressly regulates the use of email to send commercial messages.” 15 U.S.C. §7707(b)(1). That same provision, however, states that the Act does not supersede state laws to the extent that those laws “prohibit falsity or deception” in an email message or its attachments.

The court looked at the prohibitions of the Washington statutes and concluded that the plain language of the CAN-SPAM Act did not support Impulse’s preemption argument. The state Commercial Electronic Mail Statute prohibits “misrepresentation” and the use of “false or misleading information” in the course of sending email messages. The state Consumer Protection Act makes it illegal to send an email message with “false or misleading information in the subject line.” Accordingly, the CAN-SPAM Act did not preempt these provisions, as they serve to prohibit “falsity or deception.”

Gordon v. Impulse Marketing Group, Inc., 2005 WL 1619847 (E.D. Wash., July 11, 2005).

July 7, 2005 Copyright

Web content producer awarded hefty amount for unauthorized use of photographs

The U.S. District Court for the Northern District of California has entered judgment in excess of $175,000 against a defendant accused of copyright infringement and unauthorized commercial use of photographs on the Internet.

Without authorization, defendant Adkins copied and posted over 100 of plaintiff IO Group’s copyrighted images. IO filed suit against Adkins in federal court, alleging violation of the Copyright Act (17 U.S.C. §101 et seq.) and unauthorized commercial use of the photographs in violation of California Civil Code §3344. IO had registered the copyrights in each of the images. It had also obtained releases from each of the models appearing in the photographs, whereby IO became the “exclusive proprietor of the models’ rights of publicity in the photographs.”

Adkins never responded to the summons, and the court entered judgment by default. The court determined that IO had alleged sufficient facts to state claims for copyright infringement and unauthorized commercial use of the photographs.

In awarding damages, the court found that IO was entitled to $1,000 per image as statutory damages for copyright infringement. See, 17 U.S.C. 504(c)(1). The court determined that such an amount was proper given the fact that over 100 images were involved, and that IO had previously taken steps to maintain the value of the photographs by limiting their distribution.

The court awarded $750 per image as damages for violation of California Civil Code §3344(a). It noted that such an award was not duplicative of an award of damages under the Copyright Act, as this portion of the case related to the models’ rights of publicity, not the unauthorized copying of the images. Earlier in the opinion, the court had noted the holding of Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001), which states that “[a] person’s name or likeness is not a work of authorship within the meaning of [the Copyright Act].”

IO Group, Inc. v. Adkins, 2005 WL 1492381 (N.D. Cal., June 23, 2005).

June 22, 2005 Computer Crime, First Amendment, Trade Secrets

Court rejects constitutional argument in Microsoft trade secret prosecution

New York federal court holds that Economic Espionage Act of 1996 not unconstitutionally overbroad or vague.

In February 2004, defendant Genovese posted a message on his website that the source code for Windows 2000 had been “jacked,” and offered to provide copies of it via FTP to anyone willing to pay a small fee. After Microsoft investigated Genovese’s claims and successfully obtained one of the “jacked” copies, it notified the FBI. Genovese was arrested and charged under the federal Economic Espionage Act of 1996, 18 U.S.C. §1832 et seq. (“EEA”).

Genovese moved to dismiss the indictment, arguing that the EEA was facially overbroad and unconstitutionally vague as applied to him. The court rejected his arguments, and denied the motion to dismiss the indictment.

In holding that the statute was not overbroad, the court determined that Genovese’s alleged conduct, namely, distributing the source code “with intent to convert a trade secret…to the economic benefit of anyone other than the owner thereof” was not protected speech under the First Amendment.

On the question of whether the statute was unconstitutionally vague, the court concluded that the term “trade secret” was defined with “sufficient definiteness” so that an ordinary person in Genovese’s position would understand that trafficking in the Windows source code was prohibited by law. Genovese’s own conduct demonstrated that he knew the source code derived value from not being generally known (namely, by referring to it as “jacked” and by charging a fee for access to it.) Furthermore, the court found that one could infer Genovese knew the code was proprietary and that protective measures taken by Microsoft had been circumvented. Thus, Genovese could “reasonably understand” that his conduct was proscribed by the Act.

U.S. v. Genovese, 2005 WL 1439860 (S.D.N.Y., June 21, 2005).

UPDATE: Genovese pleads guilty. [More here.]

June 20, 2005 Evidence

Pennsylvania court addresses authentication of instant messages

(This was a juvenile delinquency proceeding, thus the names of the parties involved are abbreviated with initials.)

F.P. suspected that Z.G. had stolen a DVD from him. One day in September 2003, as Z.G. was getting off the school bus, F.P. approached Z.G. and “struck him numerous times about the head and face.” F.P. was adjudicated a delinquent, and sought review.

On appeal, F.P. challenged the introduction of printed transcripts of instant messages purportedly sent back and forth between F.P. and Z.G. before the attack. In these messages, the boys discussed the alleged theft of the DVD, and F.P. threatened Z.G. with violence.

F.P. argued that in order for the instant messages to have been admitted into evidence, the prosecution should have introduced information regarding their source with an ISP, or testimony from a computer forensics expert. The “inherent unreliability” of e-mail and instant messaging communications, F.P. argued, made the authentication of the documents through circumstantial evidence improper.

The court rejected F.P.’s arguments, and held that the trial court did not abuse its discretion in admitting the communications. It found that there was sufficient evidence to support the conclusion that F.P. had sent them. In the messages, F.P. had referred to himself by his first name. He accused Z.G. of stealing from him, which mirrored other testimony in the case. Furthermore, he referenced the fact that Z.G. had involved school authorities regarding the dispute between the two, which is a fact that few others would have known.

The court concluded that the applicable Pennsylvania rule of evidence (901) provided a sufficient framework for the analysis. The court held that there “was no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.”

In the Interest of F.P., — A.2d —, 2005 WL 1399264 (Pa.Super., June 15, 2005).

Scroll to top