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Night before last I spent three hours on the train ride home. The video above shows the reason for the delay. The train I took that night was backed up and delayed while they sorted out the mess in Hinsdale. Had I left work a few minutes earlier I would have been on the second train, i.e., the one that caused the minivan to burst into flames. Would have been pretty exciting/scary. Thank goodness no one was hurt.
U.S. v. Little, No. 07-170, 2008 WL 151875 (M.D. Fla. January 16, 2008)
The operator of the Max Hardcore website was indicted under 18 U.S.C. §§1462 and 1465 for distributing allegedly obscene video files which agents downloaded in Tampa, Florida. Max Hardcore moved to dismiss the indictment, raising a number of constitutional challenges to the prosecution. The court rejected each of the defendant’s arguments and denied the motion.
Statutes not facially unconstitutional
The court declined to accept the defendant’s argument that because of the evolving nature of substantive due process law, prior Supreme Court decisions upholding the federal obscenity statutes were no longer valid. It also refused the defendant’s argument that the constitutional right to privately posses obscene materials should translate into a corresponding right to distribute such material.
Statutes not unconstitutional as applied
The defendant also launched a couple of challenges to the application of the Miller test, set forth in the Supreme Court’s decision of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973). Under the Miller test, the finder of fact determines whether material is obscene by applying the following test: (a) Whether “the average person, applying contemporary community standards’” would find that the work taken as a whole, appeals to prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Max Hardcore’s challenge to the Miller test dealt with the requirement that the works at issue be “taken as a whole.” The defendants argued that because of the interconnected nature of the Web, it would be impossible to know what the term “taken as a whole” means, and it would similarly be impossible to determine the community standards against which the works should be evaluated. At the very least, the defendant argued, the entire Max Hardcore site should be considered the work “taken as a whole,” and not just the individual video files.
With little analysis, the court sided with the government, holding that the individual files – and not the whole website – should be the works “taken as a whole.” And the court concluded that the absence of a universal community standard was okay. Citing to U.S. v. Bagnell, 679 F.2d 826 (11th Cir. 1982), it held that “[i]t is constitutionally permissible to subject defendants in obscenity prosecutions to varying community standards of the various judicial districts into which they transmit obscene material.”
Garelli Wong & Assoc. v. Nichols, No. 07-6227, 2008 WL 161790 (N.D. Ill. January 16, 2008)
A recent decision from the U.S. District Court for the Northern District of Illinois presents a pretty typical fact pattern (employee leaves with sensitive data to work for a competitor), but also gives some useful guidance on the scope of the Computer Fraud and Abuse Act, 18 U.S.C. 1030 et seq. (CFAA).
Plaintiff Garelli Wong and Associates provides temporary placement for accounting professionals. When defendant Nichols worked for Garelli, he signed an NDA and learned a lot about the company’s clients, employees and strategy.
So when Garelli learned that Nichols allegedly copied a bunch of information before jumping ship, it sued. In addition to breach of contract, Garelli claimed Nichols violated the CFAA.
Nichols moved to dismiss the CFAA claim pursuant to Fed. R. Civ. P. 12(b)(6). The court granted the motion. It held that the CFAA requires a plaintiff to plead both damage and loss, and that Garelli failed to sufficiently plead both.
The CFAA defines “damage” as “impairment to the integrity or availability of data, a program, a system, or information.” Citing approvingly to the unpublished case of ResDev v. Lot Builders, 2005 WL 1924743 (M.D. Fla. August 10, 2005), which held that the word “integrity” required “some diminution in the completeness or useability of data or information on a computer system,” the court sided with Nichols. He had contended that CFAA liability does not arise merely by copying data. A violation of the CFAA requires more — some adverse effect on the system.
Garelli’s loss allegation essentially got Twomblied. The court found that Garelli’s allegations of loss — essentially a formulaic recitation of the CFAA’s $5,000 threshold language — did not provide the grounds of the entitlement to relief with more than labels and conclusions.
U.S. v. Voneida, 2008 WL 189667 (M.D. Pa. January 18, 2008)
Professor Goldman kindly emailed me a copy of the U.S. District Court for the Middle District of Pennsylvania’s decision in the case of U.S. v. Voneida. This criminal prosecution arose out of some postings that defendant Voneida is alleged to have made on his MySpace page about last April’s Virginia Tech shootings.
The court approached the case with all the awe for the Internet suitable for 1994:
[Voneida’s statements] did not occur in a moment, like words being spoken; nor were they sent from one place to another once and only once, like mailing a letter, broadcasting a message over television or radio, or even sending an email. Rather, Defendant’s comments were communicated, and had the potential to reach an audience, for at least nine days. This is one of the ways in which speech on the internet, and on social networking sites in particular, challenges existing methods of legal analysis.
In this case, the feds claimed that Voneida’s postings ran afoul of 18 U.S.C. 875(c), which prohibits the transmitting in interstate commerce of “any threat to injure the person of another.” Voneida filed a motion in limine requesting that several pieces of evidence be excluded at trial.
One of the pieces of evidence that Voneida wanted kept out was an email message that a student in Pennsylvania sent to university authorities to report the postings. The court denied Voneida’s request on this point.
The court held that in determining whether Voneida’s statements were “true threats,” it would be instructive for the jury to consider the effect of the statements on their audience. Addressing this point, the court observed the following about an online “audience”:
Even if [the student who reported the postings] was an unintended viewer, the context of the internet and social networking sites like Myspace.com may make her part of Defendant’s audience regardless of his intent to reach her as opposed to others. As a part of his audience, her response to his comments is relevant and properly considered when evaluating whether they are “true threats.”
A few more facts would be interesting. What if a social network participant adjusts his profile settings to allow only “friends” see the content? Would the so-called “audience” still be the world at large? To what extent can a publisher technologically constrain his or her audience?
Salle v. Meadows, No. 07-1089, 2007 WL 4463920 (M.D. Fla. December 17, 2007)
Defendant Meadows thought that Plaintiff Salle owed him about $9,500. He was apparently having some trouble getting paid, so he registered the plaintiff’s personal name as a domain name – briansalle.com. He then tried to sell it to Salle for the amount of the purported debt. Being uninterested in the purchase, Salle filed a cybersquatting complaint against Meadows in federal court.
Salle asserted claims under both 15 U.S.C. §1125(d) and 15 U.S.C. §1129. Both parties moved for summary judgment. It was a mixed ruling, but largely a win for Salle.
The court addressed the §1129 claim first. That portion of the Lanham Act provides:
Any person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person’s consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person.
Meadows argued that in trying to sell the domain name and thus recover money owed to him, he was not trying to profit, and therefore not liable under §1129. Despite some dispute over whether the debt was actually owed and to whom, the court ruled in Salle’s favor. “[C]yber-extortion is not a permissible way to recover a debt,” the court warned.
As for the §1125(d) claim, the court ruled in Meadows’s favor. Section 1125(d) provides, among other things, that a person shall be liable to the “owner of a mark, including a personal name which is protected as a mark under [§1125]” if that person has a bad faith intent to profit from that mark.
Salle argued that §1125 provides that all personal names are subject to trademark protection. Meadows, on the other hand, argued that a personal name must have some sort of trademark significance, e.g., acquired distinctiveness, in order to fall with the protection of §1125. Agreeing with Meadows’s interpretation of the section, the court found that Salle failed to present enough evidence to survive summary judgment on the question of whether he had protectible trademark rights in his personal name.
“Lowest perceptive capabilities.” Is that code for “a moron in a hurry“?
Chicago-based BlueAir, Inc. has apparently been getting some threats from Apple over BlueAir’s pending trademark registration for the mark AIRPOD, to be used in connection with desk top air purifiers. Apple says AIRPOD will infringe on the IPOD mark.
BlueAir has gone on the offensive, asking the U.S. District Court for the Northern District of Illinois to enter a declaratory judgment of no infringement.
The heart of BlueAir’s allegations are as follows:
“There is no reasonable likelihood of confusion, mistake, or error in the marketplace for persons of even the lowest perceptive capabilities who are seeking an iPod music player considering or buying an AIRPOD desktop air cleaner instead.”
This dispute has been going on for a few months, and it is interesting to see suit filed now, to essentially coincide with the introduction of the MacBook Air.
BlueAir, Inc. v. Apple, Inc., No. 08-427 (N.D. Ill. filed January 18, 2007)
[Download the Complaint]
[In re Subpoena Issued Pursuant to the Digital Millennium Copyrigt Act to: 43SB.com, No. 07- 6236, 2007 WL 4335441 (D. Idaho, December 7, 2007).]
When the general counsel for Melaleuca, Inc. saw some negative content someone had posted about the company on the Web site 43rdstateblues.com, he sent a cease and desist letter demanding the content be removed. The letter, however, did not accomplish its intended purpose. Instead, the site owner posted the entire letter.
Melaleuca did not give up, but just adapted its strategy. It served a DMCA subpoena [see 17 U.S.C. §512(h)] on the site, seeking to identify the person who posted the letter “so that [Melaleuca] might seek redress for copyright infringement.” Melaleuca claimed that its copyright rights in the letter were infringed when it was posted online. (Claiming copyright in cease and desist letters is not a new tactic. See, e.g., here and here.)
The website moved to quash the subpoena, asserting, among other things, that the letter was not subject to copyright protection, and that the failure by Melaleuca to establish a prima facie case of copyright ownership was fatal to the subpoena.
The court denied the motion to quash. The Web site had argued that Melaleuca could not own a copyright in the letter, according to 17 U.S.C. 102(b)’s exclusion of “any idea, procedure, process, system, method of operation, concept, principle or discovery” form copyright protection. But the court rejected that argument.
Declining to “go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash [the] subpoena,” the court found that Melaleuca’s copyright registration in the letter was sufficient to establish ownership of a valid copyright. As for alleged copying, the court found that posting of the entire letter was sufficient.
There are a couple of interesting observations to be made from this decision. First, unlike cases in which plaintiffs seek to uncover the identity of anonymous defendants accused of defamation [see here], this court gave – relatively speaking – little inquiry into the merits of the plaintiff’s case. Perhaps it felt that such an analysis was not necessary given that the Copyright Office had already determined copyrightable subject matter to exist (when it issued the registration certificate).
A second interesting question arises when one considers how the court might have ruled had the defendant asserted fair use as a basis for the motion to quash. (Doesn’t it seem like posting a cease and desist letter on the Internet, ostensibly for eliciting public ridicule, is a transformative use?) Given the fact intensive inquiry of a fair use analysis, the court would have probably reached the same conclusion, if anything to put off the factfinding until later. But would a court do that in other cases where the offending, anonymous use is more obviously fair?
FranklinCovey v. Lycos, No. 07-cv-00974 (D. Utah, filed December 17, 2007). [Download the Complaint]
FranklinCovey owns the copyright in the bestselling book The 7 Habits of Highly Effective People. It has sued Lycos, owner of AngelFire, for copyright infringement, claiming direct and/or secondary liability for the posting of an entire copy of the work online.
The allegations are a bit ambiguous as to who FranklinCovey thinks actually posted the work online. In some parts of the complaint it accuses Lycos as having posted it, but at the same time, the allegations describe the multiple DMCA takedown notices that FranklinCovey sent, as if their theory is that Lycos is a provider for third party content.
It’s an allegation as to the DMCA that raised my eyebrows when reading the complaint. Here’s what Paragraph 34 says:
“Based on Defendants’ failure to expeditiously remove or disable access to this infringement, notwithstanding their actual knowledge thereof, Defendants have waived any defense to liability they may otherwise have had pursuant to 17 U.S.C. § 512 or otherwise.”
It’s the word “otherwise” that particularly piqued my interest. Is this true? By failing to comply with a DMCA takedown notice, has Lycos really waived its defense to infringement liability?
Here’s what 17 USC 512(l) says:
(l) Other defenses not affected.–The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense.
Thoughts, anyone?
Biosafe-One, Inc. v. Hawks, — F.Supp.2d —-, 2007 WL 4212411 (S.D.N.Y. November 29, 2007)
Back in 2005, industrial-strength septic system cleaning products company Bio-Safe One, Inc., needed a “jumbo mortgage,” so its president, one Jorgensen, did a web search for brokers and located Messrs. Hawks and Skierkowski, who helped Bio-Safe One with its mortgage needs. Although that transaction was over in June 2005, Jorgensen believed that Hawks and Skierkowski used information he had provided them during the mortgage transaction to start up a competing septic business.
Jorgensen and Bio-Safe One filed a lawsuit against Hawks and Skierkowski in New York federal court alleging, among other things, copyright infringement. They claimed that the competing enterprise illegally copied elements Bio-Safe One’s website.
The plaintiffs sought a preliminary injunction to prevent Hawks and Skierkowski from continuing what they believed to be copyright infringement. The court denied the motion for preliminary injunction.
It held that although the plaintiffs had established ownership of the copyright in the Bio-Safe One website by presenting a registration certificate for it, they failed to show that the defendants had engaged in illegal copying of any original elements of the site.
Applying the “ordinary observer test,” the court held that a side-by-side comparison simply would not prompt a person to regard the aesthetic appeal of the websites as the same. Rather, it was difficult to detect any similarities. The arrangement, photographs, and graphics on the websites were “decidedly dissimilar.” And the textual elements that were similar on the websites, including minor phrasing and terminology, were so far spaced throughout that they were not noticeable.
Accordingly, the court held that the plaintiffs would not likely succeed on their claim of copyright infringement.
