I’m in this week’s episode of Viral on Veoh, talking about Creative Commons.
Click here if you can’t see the embedded video.
Blog
Colorado federal court allows discovery of anonymous P2P defendants
Warner Bros. Records Inc. v. Does 1-20, Slip Op., 2007 WL 1655365 (D.Colo. June 5, 2007)
Good cause for discovery before Rule 26(f) conference existed in light of looming threat of deletion of server data
A number of record companies, including Warner Brothers, UMG and Electra, filed yet another copyright infringement lawsuit against some individual P2P users on May 30 of this year. They didn’t know the names or the locations of the defendants, but only knew that the IP addresses from which the alleged infringement occurred belonged to Qwest Communications. So the plaintiffs asked the court for permission to obtain immediate discovery from Qwest to find out each John Doe defendant’s true name, address, telephone number, e-mail address, and Media Access Control address.
Unless a party seeking immediate discovery can show good cause as to why it should be otherwise, under Fed. R. Civ. P. 26(d), “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).”
In this case, the record companies argued that because ISPs such as Qwest typically keep server logs for only brief periods of time, the plaintiffs might never identify the defendants without getting access to the data right away. The court held that “good cause exists where the evidence sought ‘may be consumed or destroyed with the passage of time, thereby disadvantaging one or more parties to the litigation.'” It granted the plaintiffs’ motion and allowed the service of the subpoena.
“Counterfeit orders” alleged to give rise to copyright infringement
Hackers accused of unlawful distribution of copyrighted works
DeVry/Becker Educational Development Corp. produces materials used by persons studying for the CPA exam. It maintains a database which it uses to track and process orders of the copyrighted study materials. DeVry has filed a lawsuit in the U.S. District Court for the Northern District of Illinois [No. 07-3280 — download the complaint here], alleging that a number of John Doe defendants accessed the database and caused unauthorized orders to be shipped to residences in New York and Pennsylvania.
Not surprisingly, the complaint alleges common law fraud and violations of the Computer Fraud and Abuse Act [18 U.S.C. 1030], which prohibits unauthorized access to certain computer systems. The more creative claims, however, are for copyright infringement.
DeVry’s theory is that by causing the delivery of the study materials, the John Doe defendants engaged in an unauthorized distribution of the copyrighted works. It’s an interesting theory, and it raises some conceptual issues as to what “distribution” means. The complaint (e.g. at paragraph 52) says that DeVry is the one who (relying on the “counterfeit orders”), sent the course materials. It will be interesting to see whether one who is doing the sending can be different than the one doing the distributing.
DeVry Becker Ed. Dev. Corp. v. Does 1-10, No. 07-3280 (N.D. Ill., filed June 11, 2007).
Back to basics on open source
The new version of the GPL (v3) is on its way, and what better time than now to revisit some of the principles underlying open source software. While brushing up on open source concepts, I found this concise yet intelligent rundown of open source issues with an uncommon look at the downside. It’s published by the American Bar Association, so it’s gotta be good. I’m not sure how old it is (how hard would it have been to put a publication date on it?), but it’s clearly still relevant.
Catching the Redeye to vigilante website land
Tracy Swartz has written an interesting little article in today’s Redeye (for you non-Chicago readers, the Redeye is published by the Chicago Tribune and covers the trendier side of the news and the Chicago scene). The article talks about so-called “vigilante websites,” which provide users with a forum in which to report bad drivers by posting the license plate numbers of offenders. Interesting concept, and it presents some worthwhile questions about secondary liability for site owners. I’m quoted very briefly toward the end of the article. Hope you’ll check it out.
No stay of action in PODFITNESS trademark case
Apple Computer, Inc. v. Podfitness, Inc., No. 06-5805, 2007 WL 1378020 (N.D. Cal. May 10, 2007)
Podfitness.com provides a service whereby users can download workout routines onto their iPods. When Podfitness filed trademark applications for PODFITNESS, PODFITNESS.COM, PODPOCKET, and PODWORKOUT with the United States Patent and Trademark Office, Apple filed notices of opposition with the Trademark Trial and Appeal Board (“TTAB”), seeking to prevent the marks from registering. Apple also filed a federal lawsuit against Podfitness, alleging that the company’s “entire marketing strategy appears to consist of hitching its wagon to Apple’s star.”
Defendant Podfitness moved to stay the proceedings pending the outcome of the oppositions before the TTAB. The court denied the motion to stay.
Podfitness provided two arguments why a stay would be appropriate. First, it argued that since the question of likelihood of confusion would be central to all of Apple’s claims, the court should wait to see how the TTAB rules on that point. Second, Podfitness claimed that Apple has initiated numerous other oppositions before the TTAB seeking to preclude others from registering trademarks containing word combinations which include the term “POD,” and therefore a stay would further the interests of judicial economy because the TTAB’s decision would comprehensively adjudicate Apple’s right to preclude others from using POD-formative marks.
In denying the motion for a stay, the court looked to the doctrine of “primary jurisdiction.” Under this doctrine, a court should stay proceedings which are properly within the jurisdiction of, and are in fact presently under consideration by, an agency with extensive regulatory powers over the subject matter and the parties involved.
Podfitness argued that a stay of the action pending the TTAB’s decision would promote a uniform and efficient adjudication of the parties’ rights, while, at the same time, avoiding the potential for inconsistent judicial determinations concerning Apple’s rights to preclude others from using POD-formative marks. Apple countered that since the TTAB’s decision would only determine the registrability of Podfitness’s marks, the Court would still have to adjudicate its claims for trademark infringement, dilution, false advertising and unfair competition regardless of the substance of the TTAB’s determinations. Accordingly, Apple argued, a stay would only serve to delay the resolution of the issues, perhaps for years.
The court agreed with Apple’s arguments, observing that the TTAB would be incapable of resolving all of the issues between the parties. Granting a stay would only serve to postpone resolution of the issues, forcing the court to eventually adjudicate what would inevitably be stale factual claims. And in the interim, Podfitness would be able to continue its allegedly infringing activity unfettered.
So the benefit of prompt adjudication won out.
A look back at the Fair Housing Council v. Roommates.com decision
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, No. 04-56916 (9th Cir. May 15, 2007)
Ed. note: Funny thing about the blogosphere — news gets old fast. The case of Fair Housing Council v. Roommates.com was released more than 2 weeks ago, and I’m just getting around to reviewing it. When the opinion came down, it got lots of attention [see, e.g., here and here]. I hope you won’t mind this belated review of an important decision.
The Fair Housing Councils of San Fernando Valley and San Diego, California sued Roommates.com, alleging that the the popular roommate matching service violated the federal Fair Housing Act and a number of state laws. The plaintiffs moved for summary judgment at the trial court level, arguing that Roommates.com is liable for making and publishing “discriminatory statements that indicate preferences based on race, religion, national origin, gender, familial status, age, sexual orientation, source of income, and disability, all in violation of fair housing laws.”
Both parties moved for summary judgment, and the trial court dismissed the case, holding that the Communications Decency Act [at 47 U.S.C. 230] provided Roommates.com with immunity from liability. The plaintiffs sought review with the Ninth Circuit. On appeal, the court reversed most of the holding as to Section 230 immunity.
At issue was Roommates.com’s series of online questionnaires that new members filled out when signing up for the service. Individuals signing up for the service were required to provide a variety of information, including whether they would be willing to live with members of the opposite sex, or with gay men or lesbians.
Roommates.com argued that it could not be held liable for violation of the Fair Housing Act, as the website was merely an interactive computer service allowing access to information provided by third party information content providers, and therefore Section 230 immunity should apply. The Ninth Circuit disagreed, however, providing two different reasons why immunity was inapplicable.
First, the court differentiated the case from Carafano v. Metrosplash, 339 F.3d 1119 (9th Cir. 2003). In Carafano, the Ninth Circuit upheld Section 230 immunity for a dating website accused of publishing defamatory material provided in response to online questionnaires used to generate user profiles. The present case differed from Carafano inasmuch as the interactive questionnaires in that case did not specifically solicit tortious content. It was the user of the site which provided the objectionable content. In this case, however, the Roommates.com site provided the mechanism and framework to solicit tortious content, i.e., content that would indicate a preference for a roommate which could potentially violate the Fair Housing Act.
Aside: Judge Kozinski uses a hypothetical involving a website called “harrassthem.com” to illustrate the above point. After the decision came down, Joe Gratz grabbed that domain name. He’s asking for suggestions about how the domain might be used.
Despite the differences between Roommates.com and the website in Carafano, the court found another, independent basis for determining that Section 230 did not apply. The mechanism by which users could search available listings made Roommates.com an information content provider itself, and thereby outside the scope of Section 230 immunity. For example, users could search for listings matching certain criteria (e.g., will only live with straight people). Results for searches would exclude listings that did not match the searcher’s criteria. The court held that this exclusion of information in the search results added a layer of information in addition to the information provided by the site’s members. Accordingly, by adding the layer of information, Roommates.com became an information content provider, and outside Section 230 immunity which only protects providers that distribute information provided by third parties.
Big, big news for Feedburner
Last week’s rumors are confirmed — Google is in the closing stages of a $100 million deal to purchase Feedburner. What great news for this terrific Chicago company. And congratulations to my friend Rick Klau, who has been on board with Feedburner for a couple years as VP of Publisher Services, and who no doubt has been an instrumental force in the company’s success. Wow.
CAN-SPAM retrospective
Venkat Balasubramani has written an interesting article on CNET, talking about recent litigation under the CAN-SPAM act. It’s an interesting read. To find out more about the law of electronic communications, be sure to read Venkat’s blog, Spam Notes.
Viral on Veoh: Episode 21
I’m in this week’s episode of Veoh Networks’ Viral, talking about the Safe Harbor provisions of the Digital Millennium Copyright Act (“DMCA”).