Attorney Evan Brown

April 28, 2021 Computer Crime

Money for pain and suffering because your email was hacked?

Plaintiff and defendant worked together doing real estate appraisals. Defendant accessed plaintiff’s email account without authorization and was later found liable for violating the federal Stored Communications Act. When it came time to assess damages, plaintiff asked for $150,000 for the pain and suffering he endured because of the email access. He alleged that he suffered mental decline, began drinking a lot and had troubles with his marriage.

The court was sympathetic to plaintiff’s “very real difficulties” but found that the amount he was seeking bore “an outsized relationship to the actual offense.” From the court’s opinion:

[Defendant], on one occasion, committed a targeted SCA offense. [Defendant] searched solely for emails related to [plaintiff’s] disparagement of [defendant] and printed four of them. Immediately, [plaintiff] learned of the breach and quickly put security measures in place to prevent further unauthorized access. Because the offense was objectively narrow in scope, the Court credits that [plaintiff] suffered a brief period of emotional harm related to the offense. The original intrusion was startling and, no doubt, produced some anxiety during the time it took [plaintiff] to protect his privacy by installing computer security software, changing passwords, and contacting his internet service provider who assured him they had taken “care of everything.”

The court ended up awarding plaintiff $1,000 for his pain and suffering tied to the breach.

Skapinetz v. CoesterVMS, Inc., 2021 WL 1634712 (D.Md. April 27, 2021)

February 14, 2021 Section 230

HuffPost protected by Section 230 in Carter Page defamation suit

Section 230

Carter Page sued the publisher of the HuffPost over some 2016 articles about the Russia collusion matter that Page claimed were defamatory. These articles were written by “contributors” to the HuffPost, who, according to the court, “control their own work and post freely to the site”.

The court threw out the defamation claims concerning these articles, in part because it found that HuffPost was immune from suit thanks to Section 230. The court determined that HuffPost was not the “information content provider” since the content was written by these so-called contributors.

Page v. Oath Inc., 2021 WL 528472 (Superior Ct. Del., February 11, 2021)

Evan Brown is a technology and intellectual property attorney.

February 11, 2021 Contracts

What’s going on legally with Jeep pulling the Bruce Springsteen ad?

Morals clauses in talent agreements can fuel cancel culture.

Jeep featured Bruce Springsteen in an ad that aired during Sunday’s Super Bowl. Since then, news broke that Springsteen had been arrested almost three months prior for drunk driving. So Jeep pulled further use of the ad.

This scenario shines light on a key provision in the contract that celebrities and brands typically sign. An agreement of this sort will contain a “morals clause”. Here is the language of a typical clause like this (this is just an example of such a clause – not the one in the Jeep/Springsteen agreement):

Company will have the right to terminate this Agreement for cause, which includes, without limitation, . . . commission of any act (in the past or present) which degrades Talent, Company or the Products or brings Talent, or Company or the Products into public disrepute, contempt, scandal or ridicule. Upon termination for cause, Company shall have no further obligation to Talent (including, but not limited to, any payment obligations).

Companies want these provisions for obvious reasons – if the face of the company comes under public scrutiny for any bad reason, the company needs a method to part ways. Talent with more negotiating power may be able to narrow the scope of the circumstances in which the company can terminate the agreement. For example, it could require actual conviction of a serious crime.

One problem, however, particularly for talent, is how broadly morals clauses can be written. The example clause above is broad and vague. And note how the language in this example pulls in past conduct as well (old tweets, anyone?). Given the polarized character of modern public discourse, just about everything done in public is subject to contempt, scandal or ridicule by at someone. These clauses provide the means for the commercial side of cancel culture to flourish.

Evan Brown is an intellectual property and technology attorney in Chicago.

February 11, 2021 Section 230

Section 230 protected Google in illegal gambling lawsuit over loot boxes

Section 230

Plaintiffs sued Google claiming that loot boxes in games available through the Google Play store were illegal “slot machines or devices”. (Players who buy loot boxes get a randomized chance at receiving an item designed to enhance game play, such as a better weapon, faster car, or skin.) Plaintiffs characterized these loot boxes as a “gamble” because the player does not know what the loot box actually contains until it is opened. Defendant Google moved to dismiss the lawsuit on Section 230 grounds. The court granted the motion.

As relevant here, Section 230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 203(e)(3).

The court held that Google was immune under Section 230 because (a) it is an interactive computer service provider, (b) plaintiffs’ claims over the loot boxes sought to treat Google as the “publisher or speaker” of the games containing the allegedly illegal loot boxes, and (c) the games constituted information provided by third parties.

Of particular interest was the court’s treatment of plaintiff’s argument that Section 230 only relates to “speech” and that Google’s provision of software did not fit into that category. Rejecting this argument, the court cited to the case of Evans v. Hewlett-Packard Co., 2013 WL 4426359(N.D. Cal. Aug. 15, 2013) in which the court used Section 230 to knock out Chubby Checker’s trademark and unfair competition claims against HP over a game HP made available.

Coffee v. Google, LLC, 2021 WL 493387 (N.D. Cal., February 10, 2021)

Evan Brown is a technology and intellectual property attorney in Chicago.

February 8, 2021 Contracts

Court finds clickwrap independent contractor agreement enforceable

Plaintiffs were companies that sued some of their former independent contractors who worked for the companies in a “direct sales community”. The court needed to determine whether defendants had entered into a valid contract with plaintiffs. Applying Texas law, the court observed that other courts have recognized the validity of electronic contracts. It found that the agreements at issue were valid clickwrap agreements and that plaintiffs had – through screenshots they submitted – at minimum, made the requisite showing that contracts existed between plaintiffs and each defendant.

Elepreneurs Holdings, LLC et al. v. Benson et at., 2021 WL 410001 (E.D. Tex., February 5, 2021)

This post originally appeared on evan.law.

February 1, 2021 Copyright

Chicago area retailers sued over iconic David Bowie photo

Brian Duffy was an English photographer. He died in 2010 but the Brian Duffy Archive owns and enforces the copyright in his works. Defendants are small retailers around Chicago who developed and sold gift items alleged to appropriate one of Duffy’s well-known David Bowie photos. Who among us hasn’t wished for a Rebel Rebel Pouch or a Ziggy Stardust Koozie? Apparently not the Brian Duffy Archive. It has sued for copyright infringement.

Plaintiff first noticed allegedly infringing works on Instagram and then chased down the defendant retailers who do business both online and through brick and mortar stores. Plaintiff filed the case in January and things are just getting underway. Here are some of the interesting issues that could arise in the litigation:

Registration timing issues – the photo was taken in 1973 but not registered in the U.S. until 2017.
Whether the photo was ever published before 1989 without a copyright notice. That could have placed it in the public domain.
Fair use – Are these uses transformative? Have they affected the market for the original work?

The Duffy Archive is certainly trying to keep defendants under pressure. Plaintiff seeks injunctive relief, maximum damages, costs and attorneys fees and anything else the court will give it.

Duffy Archive Limited v. The Found, Inc. et al., No. 21-cv-00181 (N.D.Ill., filed January 12, 2021)

About the author: Evan Brown is a technology and intellectual property attorney in Chicago. This post originally appeared on evan.law.

January 26, 2021 Computer Crime

Former employee committed vandalism by deleting company’s YouTube videos

Of all the things that can go wrong when deleting your former employer’s YouTube videos, being liable for vandalism may not be the first thing that comes to mind. But it happened to the former employee of an Ohio company.

Defendant worked for plaintiff as vice president of sales and left the company in 2017. During that time plaintiff authorized defendant to access the company’s two YouTube channels and to upload content. Two years after defendant left, however, all the videos on both channels disappeared. Through detailed forensic work, plaintiff showed that defendant deleted the videos using his iPhone.

So plaintiff sued defendant for violating the Computer Fraud and Abuse Act, “vandalism” under Ohio law, and breach of a confidentiality provision in defendant’s employment contract. Plaintiff sought summary judgment on these claims, and the court granted plaintiff’s motion, finding there was no reasonable dispute the defendant deleted the YouTube videos.

The vandalism claim is particularly interesting. Under the applicable Ohio law, one is liable if he or she knowingly causes physical harm to the property of another. The decision does not indicate that defendant argued the deletion of YouTube videos would not meet this criterion. Instead, the decision indicates that defendant essentially stipulated he would be liable if plaintiff proved he deleted the videos. The court believed the so-called “mountain” of evidence plaintiff produced showing that defendant was the one who did the deletion.

Kaivac, Inc. v. Stillwagon, 2021 WL 184593 (S.D. Ohio, January 19, 2021)

About the author: Evan Brown is a technology and intellectual property attorney in Chicago. This post originally appeared on http://evan.law.

December 29, 2020 Copyright, Defamation, DMCA

Is it defamation to accuse someone of sending a bogus DMCA takedown notice?

Esports aren’t only about 21st century video games. Apparently there is a relatively robust community of Tecmo Bowl enthusiasts who – though the game is three decades old – gets together to compete in tournaments. A couple of members of that community got into it with one another online, and the spat spawned some fierce litigation. That scuffle raised the question of whether accusing someone of sending a bogus DMCA takedown notice is defamatory.

The online scuffle

Plaintiff was upset about posts defendant made in the forum of a Tecmo Bowl tournament website. One of plaintiff’s claims was that defendant had wrongfully accused plaintiff of sending bogus DMCA takedown notices to Facebook concerning a page related to a previous Tecmo Bowl tournament.

Claims of bogus DMCA takedown notices defamatory?

So plaintiff sued defendant in Texas state court for defamation, and lost. He believed that he had established a defamation claim, since defendant had – in plaintiff’s view – accused plaintiff of violating the law by abusing the DMCA process. So plaintiff sought review with the Court of Appeals of Texas. But that higher court agreed with the lower court. It was proper to dismiss the defamation case.

The court evaluated whether an objectively reasonable reader of the forum posts would draw the implication that plaintiff had committed a crime. Specifically, plaintiff had asserted that defendant accused plaintiff of committing perjury, since DMCA takedown notices have to be sworn to. See 17 U.S.C. §512(c)(3)(A)(vi).

But the court did not agree with plaintiff’s theory. It found “that the general public, or more accurately the reasonable reader, is not likely aware of what a “DMCA claim” [is] or what the acronym DMCA even means.” So in this court’s view, and on these facts, accusing someone of sending a DMCA takedown notice that was bogus was not defamatory.

Hawkins v. Knobbe, 2020 WL 7693111 (Ct. App. Texas) December 28, 2020

See also:

Need help with an online issue? Let’s talk.

About the author:

Evan Brown is an intellectual property and technology attorney in Chicago. This post originally appeared on evan.law.

October 26, 2020 Contracts

Intellectual property issues in a speaker’s agreement

Let’s say you’re going to host a conference — these days that would be an online conference — and you want to invite people to give presentations. You will want to enter into a contract with those presenters to cover some of the obvious logistical items: the presenter is obligated to show up, the presentation will be on a certain topic, it will last for a certain amount of time, and there may be payment. And there are some important intellectual property issues that the speaker’s agreement should also address.

Marketing and promotion of the event

One important intellectual property issue in a speaker’s agreement has to do with the marketing and promotion of the event. This involves primarily the right of publicity. You are likely going to want to generate materials, such as social media posts, that have the name and the image of the presenter. You will want to seek to get a release from the presenter that authorizes you to use his or her name and image in connection with the marketing and promotion of the event.

Handout materials

A second issue that you will need to deal with has to do with handout materials or other accompanying documentation for the presentation. You will want to make sure that you have the appropriate copyright license from the presenter allowing you to copy and distribute those materials. You should also consider getting assurances from the presenter that those materials will not infringe any third party intellectual property rights. And you may want to have the agreement say that the presenter will indemnify you and pay the cost of the defense if you get sued by a third party because the handout materials infringe.

Video or audio of the presentation

A third intellectual property issue that you will want to think about in connection with a speaker’s agreement has to do with any content that you generate at the event. Say, for example, you film the presentation and you want to make the video available to the world so it can see what the event was like. On this point we are back to the discussion of the right of publicity. Obviously the presenter’s name and image is going to be in that content. So you want to make sure that you have a release for that.

As the host of the event, you will likely want to own the copyright in the video. The presenter may ask for a carveout — that is, clarification that though you own the copyright in the video, the presenter retains ownership of the underlying content presented.

Need help with intellectual property issues in a speaker’s agreement?

Please feel free to give me a call or send an email. Dial (630) 362-7237, or email ebrown@internetcases.com.

October 14, 2020 Anonymity

How do you identify an anonymous hacker?

An unknown person allegedly hacked plaintiff’s information systems and temporarily rendered plaintiff’s email system inoperable. Not knowing who to sue, plaintiff sued a number of “John Doe” defendants under the Computer Fraud and Abuse Act and the Stored Communications Act. It was yet to identify the anonymous hacker.

But that was as far as plaintiff could go without the court’s help. Since plaintiff did not know the real names of the defendants, it could not serve the complaint on them. To learn defendants’ identities, plaintiff sought permission from the court to seek expedited discovery.

Early discovery to identify an anonymous hacker

Under the rules of procedure, a party may not start serving discovery requests (including subpoenas) until the plaintiff and defendant have held their Rule 26(f) conference. But the parties cannot hold that conference unless their identities are known. So, in circumstances where “good cause” exits, courts will allow plaintiffs to send subpoenas before the Rule 26(f) conference.

In this case, plaintiff asked for permission to send a subpoena to the internet service provider associated with the IP address used to hack plaintiff’s system.

When is there good cause to grant early discovery?

The court found good cause to permit limited discovery prior to the Rule 26(f) conference. Without information from the ISP, plaintiff could not amend its complaint to name the appropriate defendant, let alone effectuate service of that pleading.

The court recognized that the subscriber whose information was on file with the internet service provider may not be personally responsible for the allegedly wrongful access. But he or she may have information that would assist in identifying the alleged bad actor. The court found, therefore, that the subscriber’s identity was relevant and discoverable under the broad scope of applicable rules.

The court’s order allowing expedited discovery contained certain important limitations, to curb against potentially expansive and intrusive discovery. It permitted plaintiff to serve a subpoena on the internet service provider. But plaintiff could only seek the name and address of the subscriber associated with the IP address used to access plaintiff’s systems.

Re: Gaaays In Spaaace v. John Does (1-10) et al., 2020 WL 6042289 (D.N.J. October 13, 2020)

Evan Brown, nondisclosure agreements Evan Brown is a technology and intellectual property attorney in Chicago. This content originally appeared on evan.law.