CNet News has a report on the decision here. Download the court’s order here.
Columbia Pictures v. Bunnell, No. 06-1093, (C.D. Cal., December 13, 2007).
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Franklin Covey sues Lycos for posting of 7 Habits book
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?
Court flushes septic company’s request for injunction in copyright suit
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.
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.
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.
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?
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.”
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.”
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.
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.