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)
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.
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.
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
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.
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)
The Computer Fraud and Abuse Act (CFAA) has a provision that makes it unlawful to “knowingly cause the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause damage without authorization, to a protected computer.” Can a person violate that provision of the CFAA by deleting data on his or her own computer? A recent federal case answered that question.
Plaintiff sued its former chief technology officer under the CFAA after it learned that the former executive wiped the hard drive of his personal laptop he had used for company business. Defendant moved to dismiss, arguing primarily that the purpose of the CFAA is to target hackers. And he argued that there is a circuit split over what it means for an employee to access a computer without authorization or in excess of authorization.
The court denied the motion to dismiss. It acknowledged there is a circuit split on what it means for an employee to access a computer without authorization or in excess of authorization. Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006) and LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009) exemplify this split. But the court noted that this case did not present the question of authorization to access a computer. Instead, the relevant CFAA provision discusses unauthorized damage.
Looking at the plain language of the CFAA, the court found no basis to dismiss the complaint. So the court in effect said that a person can violate the CFAA by deleting data on his or her computer. The factual question of whether the particular defendant in this case did that will proceed to trial.
New Touch Digital Inc. v. Cabral, 2020 WL 5946067 (D.D.C. October 7, 2020)
A work of authorship is protected by copyright at the moment it is created. If you take a photo or write some software or draft some text, copyright law protects that work the moment it becomes fixed in a tangible medium of expression for more than a transitory duration. You do not need a registration to own a copyright. It exists automatically. But there are certain benefits conferred by registering a copyright.
Copyright registration allows the holder to sue for infringement.
One benefit from having a registration is that the holder of the copyright can sue for infringement. This is a requirement for litigation – a court will not let a copyright infringement case go forward unless the plaintiff shows that it has a registration certificate. And that registration certificate needs to be in hand — it is not enough for the plaintiff to have just applied to register the copyright. It actually needs to have the registration issued.
Better evidence.
A second benefit of having a copyright registration certificate is the evidentiary weight that it carries in court. If the registration is obtained in the five years following the first publication of the work, the judge will look at that registration certificate and give it great importance in ascertaining whether the plaintiff has a valid copyright in the work.
Statutory damages and attorney’s fees.
A third benefit of having a registration is that in certain circumstances the plaintiff can recover its costs and attorneys fees, and be entitled to recover statutory damages. These damages can range anywhere from $750 all the way up to $150,000 per work infringed.
To be entitled to these things the plaintiff must have obtained a timely copyright registration. To be timely, it has to either have been obtained before the infringement began, or if it was obtained after the infringement began, it was obtained within the first three months following the first publication of the work. The key is that timing matters — it is generally advisable to register a work within the first three months following first publication.
Need help with a copyright registration?
Please feel free to give me a call at (630) 362-7237, or send email to ebrown@internetcases.com.
About the author:
Evan Brown is a technology and intellectual property attorney in Chicago. This content originally appeared on evan.law.
Nondisclosure agreements (or NDAs) are important contracts. There are a number of reasons why parties may want to enter into them.
The first reason is probably the most obvious reason. Parties have proprietary or sensitive information that they don’t want to become publicly known, or known to a competitor. So they enter into nondisclosure agreements to put restrictions on how the parties use or disclose confidential information The agreement contains provisions that give remedies such as injunctive relief if there is a breach or a threatened breach of the nondisclosure agreement. This is an important tool.
A second reason for entering into a nondisclosure agreement is related to the first one. Having a nondisclosure agreement gives the parties the confidence to meaningfully collaborate. If there is a nondisclosure agreement in place, the parties can freely exchange information, and that makes the potential innovation from their collaboration much more robust.
And a third third reason for entering into a nondisclosure agreement relates to the law of trade secrets. The parties may trust one another completely, and may not even think for a moment that the other side would misuse its confidential information or disclose it in a way that is harmful. But it is important to enter into nondisclosure agreements to protect the trade secret status of information. The law of trade secrets only protects information that has been the subject of efforts to keep secret. So the nondisclosure agreement can be important evidence that the party has taken the right steps to protect its trade secrets.
Let’s talk
Nondisclosure agreements can be complex. There are a number of issues to consider and appropriate strategies to take. If you have questions about a nondisclosure agreement, give me a call at (630) 362-7237, or send me an email at ebrown@internetcases.com.
About the author:
Evan Brown is a technology and intellectual property attorney in Chicago. This content originally appeared on evan.law.
Twitter enjoyed Section 230 immunity for aiding and abetting defamation because plaintiffs’ claims on that point did not transform Twitter into a party that created or developed content.
An anonymous Twitter user posted some tweets that plaintiffs thought were defamatory. So plaintiffs sued Twitter for defamation after Twitter refused to take the tweets down. Twitter moved to dismiss the lawsuit. It argued that the Communications Decency Act (CDA) at 47 U.S.C. §230 barred the claim. The court agreed that Section 230 provided immunity to Twitter, and granted the motion to dismiss.
The court applied the Second Circuit’s test for Section 230 immunity as set out in La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020). Under this test, which parses Section 230’s language, plaintiffs’ claims failed because:
(1) Twitter was a provider of an interactive computer service,
(2) the claims were based on information provided by another information content provider, and
(3) the claims treated Twitter as the publisher or speaker of that information.
Twitter is a provider of an interactive computer service
The CDA defines an “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.” 47 U.S.C. § 230(f)(2). The court found that Twitter is an online platform that allows multiple users to access and share the content hosted on its servers. As such, it is an interactive computer service for purposes of the CDA.
Plaintiffs’ claims were based on information provided by another information content provider
The court also found that the claims against Twitter were based on information provided by another information content provider. The CDA defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). In this case, the court found that plaintiffs’ claims were based on information created or developed by another information content provider – the unknown Twitter user who posted the alleged defamatory content. Plaintiffs did not allege that Twitter played any role in the “creation or development” of the challenged tweets.
The claim treated Twitter as the publisher or speaker of the alleged defamatory information
The court gave careful analysis to this third prong of the test. Plaintiffs alleged that Twitter had “allowed and helped” the unknown Twitter user to defame plaintiffs by hosting its tweets on its platform, or by refusing to remove those tweets when plaintiffs reported them. The court found that either theory would amount to holding Twitter liable as the “publisher or speaker” of “information provided by another information content provider.” The court observed that making information public and distributing it to interested parties are quintessential acts of publishing. Plaintiffs’ theory of liability would “eviscerate” Section 230 protection because it would hold Twitter liable simply for organizing and displaying content exclusively provided by third parties.
Similarly, the court concluded that holding Twitter liable for failing to remove the tweets plaintiffs found objectionable would also hold Twitter liable based on its role as a publisher of those tweets, because deciding whether or not to remove content falls squarely within the exercise of a publisher’s traditional role and is therefore subject to the CDA’s broad immunity.
The court found that plaintiffs’ suggestion that Twitter aided and abetted defamation by arranging and displaying others’ content on its platform failed to overcome Twitter’s immunity under the CDA. In the court’s view, such activity would be tantamount to holding Twitter responsible as the “developer” or “creator” of that content. But in reality, to impose liability on Twitter as a developer or creator of third-party content – rather than as a publisher of it – Twitter would have to directly and materially contribute to what made the content itself unlawful.
Plaintiffs in this case did not allege that Twitter contributed to the defamatory content of the tweets at issue, and thus pled no basis upon which Twitter could be held liable as the creator or developer of those tweets. Accordingly, plaintiffs’ defamation claims against Twitter also satisfied the final requirement for CDA immunity: the claims sought to hold Twitter, an interactive computer service, liable as the publisher of information provided by another information content provider. Ultimately, Twitter had Section 230 immunity for aiding and abetting defamation.
Brikman v. Twitter, Inc., 2020 WL 5594637 (E.D.N.Y., September 17, 2020)
Evan Brown is an attorney in Chicago practicing copyright, trademark, technology and in other areas of the law. His clients include individuals and companies in many industries, as well as the technology companies that serve them. Twitter: @internetcases
Evan Brown is a technology and intellectual property attorney in Chicago. This content originally appeared on 
