Attorney Evan Brown

November 28, 2007 Anonymity, First Amendment, Litigation

Arizona state court adopts three part test for unmasking anonymous online speakers

Test adds an additional “balancing of the competing interests” element to the Cahill test

Mobilisa, Inc. v. Doe, — P.3d —-, 2007 WL 4167007 (Ariz. App. November 27, 2007)

Plaintiff filed suit in Washington state court against an anonymous (“John Doe”) defendant which it accused of violating the Computer Fraud and Abuse Act and the Stored Communications Act. Doe allegedly accessed the plaintiff’s computer system and obtained a copy of an “intimate” email which he forwarded to a number of people.

Plaintiff served a subpoena on Doe’s Arizona-based email provider, seeking to uncover Doe’s true identity. The email provider and Doe individually, through counsel, objected, but the Arizona court ordered that Doe’s identity be revealed. The court looked to the 2005 case of Doe v. Cahill which requires (1) that the anonymous party sought to be unmask be given notice of the proceedings, and (2) that the party seeking the identity of the anonymous party put forth sufficient facts to survive a motion for summary judgment.

Doe appealed the lower court’s order which required he be identified. On appeal, the Arizona Court of Appeals remanded the matter back to the trial court. It held that although the court correctly applied the two Cahill factors, it should have considered a third factor, namely, a balancing of the relative interests of the parties. Consideration of this third factor, the court held, would help ensure that the important First Amendment rights at issue in anonymous speech cases would be adequately protected.

November 28, 2007 Fraud/Misrepresentation

Online purchaser not entitled to $1 hard drives

Perez v. Luu, — S.W.3d —-, (Tex. App. November 1, 2007).

Perez sued Luu in Texas state court after Luu refused to fulfill Perez’s order of 100 hard drives that Perez ordered from Luu online. Luu’s website mistakenly listed the price of the hard drives as $1 each, when in reality Luu charged closer to $1,200 apiece.

The matter proceeded to trial and the court entered judgement in favor of Luu. Perez appealed, and the appellate court affirmed. It held that Perez failed to establish a violation of the Texas Deceptive Trade Practices Act.

The court determined that the relevant portions of the statute [Tex. Bus. & Com. Code Sec. 17.41 et seq.] required a showing of intent to misrepresent the price of goods being offered for sale. Luu introduced evidence showing that the $1 pricing was merely a mistake — the website was new and the developer had previously used a $1 quantity for testing purposes. Moreover, there was language on Luu’s website which gave him the right to correct any errors in pricing.

November 27, 2007 Copyright

Booklocker.com on the copyright offensive in Maine

Booklocker.com, Inc. v. Sartain, No. 07-0176 (D. Me., Filed November 21, 2007). [Download the Complaint]

Online, on demand book publisher Booklocker.com has filed a declaratory judgment action against Utah-based artist Julie Sartain, in response to a cease and desist letter Sartain sent to Booklocker alleging copyright infringement. In the case, Booklocker seeks a determination by the United States District Court for the District of Maine that Booklocker’s use of artwork on book covers does not infringe on any copyright right held by Sartain.

The allegations are a bit sparse, as one may expect to see in federal pleading, but it appears that Booklocker believes Sartain does not own the copyrights in the cover artwork, but that such artwork is owned by the authors who have Booklocker print their books on demand. In the alternative, Booklocker asserts that it has some sort of implied license to reproduce the artwork through the course of dealing between the parties during the past four years.

In asserting that the individual authors — and not Sartain — own the copyrights in the individual pieces of cover art, Booklocker is putting a lot of faith in the process whereby the authors may have commissioned Sartain to create those works. The complaint says that there are more than a thousand works at issue. Are we to believe that there is a detailed, written agreement in place for each one of those works, in which Sartain assigned her copyright rights to these authors?

November 21, 2007 Copyright, DMCA

Beaded jewelry website tussle turns into lawsuit alleging bogus DMCA takedown notice

Does a hosting provider breach the contract with its customer when it responds to a DMCA takedown notice concerning its customer’s content? The plaintiff in this case would have you believe that. [Download the Complaint]

Jades Creations, LLC v. White, No. 07-50225 (N.D. Ill., Filed November 16, 2007)

Rockford, Illinois-based Jades Creations, LLC has filed suit in federal court against its competitor in the beaded jewelry industry over what Jades claims were unmeritorious takedown notices sent to Earthlink under the Digital Millennium Copyright Act.

Back in October, SW Creations sent a DMCA takedown notice to Earthlink, the host of Jades Creations’ Web site, claiming that material located thereupon infringed SW Creations’ copyright and trademark rights. (Never mind the DMCA does not apply to trademarks.) Jades, of course, disputed the fact that there was infringing content on its site, and successfully had access to its site restored after sending Earthlink a counternotification.

But Jades didn’t stop there. Obviously perturbed by what it believed to be an unwarranted takedown notice that caused it to lose business, it filed a lawsuit in the Northern District of Illinois, asking for a declaration of non-infringement and asserting various tort claims for the takedown notice.

One of the claims is for tortious interference with the contract between Jades and her hosting provider Earthlink. This is intriguing, but it looks like there could be a bit of a hurdle here.

Under Illinois law, a successful plaintiff in a tortious interference with contract action has to prove, among other things, that an actual breach of contract occurred because of the defendant’s conduct. Belden Corp. v. InterNorth, Inc., 413 N.E.2d 98 (Ill. App. 1st Dist. 1980). Did Earthlink breach the contract with its hosting customer when it obeyed the demands of a third party DMCA takedown notice?

Jades alleges that this was a breach (see paragraph 60 of the complaint). Do you agree?

Earthlink’s terms of service can be found here. And remember, 17 U.S.C. 512(g) provides that “a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.”

November 20, 2007 Electronic Discovery, Litigation

No spoliation sanctions for deletion of email where CD copies had been made

Bakhtiari v. Lutz, — F.3d —-, 2007 WL 3377215 (8th Cir. November 15, 2007)

Not too many e-discovery (or any type of discovery) disputes get to the federal courts of appeal. But we have a recent decision from the Eighth Circuit that addressed the topic of “spoliation” when emails had been deleted.

A party in litigation is guilty of spoliation when the court finds that he or she “intentionally destroyed evidence with a desire to suppress the truth.” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). Plaintiff Bakhtiari filed suit against the University of Missouri-Rolla and a number of administrators there, alleging Title VII and civil rights violations. He had been terminated from his position as a teaching assistant in the chemistry department.

Soon after Bakhtiari was terminated, but before he filed suit, the university’s IT staff backed up the contents of his email account onto two CDs. The university then allowed the messages to be deleted as part of “automated systems maintenance.” It turned over a copy of the CDs to Bakhtiari, but he claimed that large portions of data were missing.

At the trial court level, Bakhtiari claimed that the university should be sanctioned for spoliation for deleting the email messages from the server. The court denied this motion, however, and Bakhtiari sought review with the Eighth Circuit. On appeal, the court affirmed the denial of the motion.

The appellate court held that the lower court did not abuse its discretion in finding that the IT staff had taken appropriate steps to backup the data, and that Bakhtiari may himself have been responsible for the missing portions. Moreover, there was credible evidence that third parties had access to the account before the backups were made, and that Bakhtiari had asked that portions be deleted. Bakhtiari had failed to demonstrate, the court held, that the university acted with a “desire to suppress the truth.”

November 16, 2007 Copyright, Litigation

This case is not off to a good start

Windy City Marketing, Inc. v. Places Advertising, Inc., No. 07-6401 (N.D. Ill., filed November 12, 2007) [Download the complaint]

Windy City Marketing, a Chicago company, has filed a federal lawsuit against a startup competitor, Places Advertising, Inc. The suit alleges infringement of copyright allegedly owned by Windy City Marketing in certain bound marketing pieces called “inside chicago”. Windy City Marketing claims that Places Advertising has wrongfully copied the marketing materials and is distributing those to Windy City Marketing’s customers.

The big problem with the complaint is that there is no allegation that Windy City Marketing owns a registration in the works at issue. A quick read of Section 411 of the Copyright Act will reveal what’s wrong with this picture. You gotta have a registration before you can file a lawsuit for copyright infringement. For the plaintiff’s sake, thank goodness for Fed. R. Civ. P. 15.

November 15, 2007 Employment, Ethics, Litigation, Privacy

Be careful with email because your employer is “looking over your shoulder”

Workplace email policy destroyed attorney-client privilege

Scott v. Beth Israel Medical Center, — N.Y.S.2d —-, 2007 WL 3053351 (N.Y. Sup. October 17, 2007).

Dr. Scott, who used to work for Beth Israel Medical Center in New York, sued his former employer for breach of contract and a number of other different things. Before he was terminated, however, he had used his work email account to send messages to his attorneys, discussing potential litigation against Beth Israel.

When Dr. Scott found out that Beth Israel was in possession of these email messages, he asked the court to order that those messages be returned to him. He argued that they were protected from disclosure to Beth Israel under the attorney client privilege.

Beth Israel argued that they were not subject to the privilege because they were not made “in confidence.” There was an email policy in place that provided, among other things, that the computers were to be used for business purposes only, that employees had no personal right of privacy in the material they create or receive through Beth Israel’s computer systems, and that Beth Israel had the right to access and disclose material on its system.

Dr. Scott argued that New York law [CPLR 4548] protected the confidentiality. Simply stated, CPLR 4548 provides that a communication shouldn’t lose its privileged character just because it’s transmitted electronically.

The court denied Dr. Scott’s motion for a protective order, finding that the messages were not protected by the attorney client privilege.

It looked to the case of In re Asia Global Crossing, 322 B.R. 247 (S.D.N.Y. 2005) to conclude that the presence of the email policy destroyed the confidential nature of the communications. The policy banned personal use, the hospital had the right to review the email messages (despite Scott’s unsuccessful HIPAA argument), and Dr. Scott had notice of the policy.

The decision has implications for both individuals and the attorneys who represent them. Employees should be aware that when they are sending messages through their employer’s system, they may not be communicating in confidence. And attorneys sending email messages to their clients’ work email accounts, on matters not relating to the representation of the employer, must be careful not to unwittingly violate the attorney client privilege.

What’s more, although the decision is based on email communications, it could affect the results of any case involving instant messaging or text messaging through the company’s server.

November 14, 2007 Contracts, Trademarks

Ownership of domain name grounds for civil contempt and award of attorney’s fees

But mere ownership of domain name, without “use,” was not enough to give rise to infringement.

Careylicensing, Inc. v. Erlich, No. 05-1194, 2007 WL 3146559 (E.D. Mo. October 25, 2007)

Plaintiff Carey International and defendant International Chauffeured Services are competitors in the limousine industry. Carey sued International back in 2005 for trademark infringement, and the parties settled the case. They entered into a consent judgment, which is, essentially, like a contract between the parties that was made an order of the court. The consent judgment prohibited, among other things, the defendant from owning any domain name containing the word “Carey.”

In February 2007, the plaintiff noticed that the defendant owned a domain name careylimousine.net. The plaintiff eventually went back into court, asking that the defendant be held in contempt for violating the consent judgment and, pursuant to the terms of the consent judgment, be awarded attorneys fees and “liquidated damages,” for breaching the agreement.

The court found that ownership of the domain name by the defendant warranted a contempt citation. It also found that that ownership was a breach that made an award of attorney’s fees proper. But the court declined to award liquidated damages.

The consent judgment provided that liquidated damages be awarded for any “infringement” of the plaintiff’s mark. But in this case, there was no infringement. The court found that merely owning the domain name, without having an active site there, was not a “use” in commerce as required by the Lanham Act. Without the requisite element of use, there could be no infringement.

November 13, 2007 Contracts

Purported John Kerry ex-flame’s suit against Yahoo tossed

I’m going back in time a little bit to pick up on an unreported September 5, 2007 decision by a New York state trial court in the case of Whitnum v. Yahoo! [2007 WL 2609825].

Plaintiff Whitnum is the author of the book Hedge Fund Mistress, and also the owner of the website of the same name. Yahoo, who hosted the site, is alleged to have shut down the site for 8 hours on August 19, 2004, which was the same day that the book was mentioned on the front page of the Boston Herald.

Whitnum claimed that this caused her to lose out on $125,000 in revenue, so she sued Yahoo for that amount. Yahoo moved to dismiss, however, citing to its hosting terms of service which provided that it had the right “at any time and from time to time to modify or discontinue, temporarily or permanently, the [hosting] Service.” The terms of service also provided, among other things, that Yahoo would not be liable for any indirect or consequential damages resulting from a customer’s inability to use the service.

The court granted the motion to dismiss. It rejected Whitnum’s arguments that she should be allowed to file an amended complaint alleging intentional conduct or gross negligence, instead finding that her basis for saying that Yahoo may have shut down her account to silence her story about having dated John Kerry was mere speculation.

November 13, 2007 Anonymity, Defamation, Section 230

Complaint amended in AutoAdmit defamation lawsuit

The saga surrounding the defamation lawsuit filed by a couple of Yale law students against some anonymous posters to the AutoAdmit forum board keeps brewing. According to this article from the Yale Daily News, the plaintiffs, two female law students, have amended their complaint against the 38 John Doe defendants. This time around, they omitted from the list of defendants a former employee of AutoAdmit, who was a defendant in the original complaint. Looks like the plaintiffs have considered the effect of 47 USC 230 on their chances of success against the provider of the forum board service.