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July 12, 2006 Miscellaneous

Two must reads: one on net neutrality, the other on Section 230 and Wikipedia

There have been a couple of very interesting articles to appear online in the past few days that I recommend.

Ed Felten has put together a very accessible primer on the technological aspects underlying network neutrality (perhaps more aptly described as network discrimination.) After reading the article, one can see that policymaking concerning the issue is much subtler than it appears at first blush.

Eric Goldman pointed me to a terrific article by Ken Myers called Wikimmunity which is slated to be published in this fall’s Harvard Journal of Law and Technology. Myers provides a detailed roadmap to the conclusion that 47 U.S.C. 230 should permit Wikipedia to escape liability for defamatory content posted by the volunteers who add content to it. It’s a brilliant analysis of Wikipedia’s history, the legislative impulse behind Section 230’s enactment, and the important cases that have applied the law.

July 7, 2006 Trademarks

“Google” as trademark takes a step toward “genericide”

Calvin (as in this Calvin, not this one) said “verbing weirds language.”

Yesterday the publishers of the Merriam-Webster dictionary announced that the word “google” has been added to the English lexicon as a verb, meaning “to use the Google search engine to obtain information . . . on the World Wide Web.” [Covered here on SiliconValley.com.]

Surprisingly, a Google spokesman said that the listing is “appropriate.” Is it? Perhaps Google should be concerned that widespread acceptance of the word “google” as a verb could mean that the word is becoming generic — i.e., is becoming the very name of the service the company provides. Generic terms are not subject to trademark protection.

In the case of America Online, Inc. v. AT & T Corp., 243 F.3d 812 (4th Cir. 2001), the court held that the term “IM” was not subject to trademark protection because, among other things, AOL had used the term as a verb. The court also pointed to books, dictionaries, and glossaries defining “instant message” with the “IM” designation. (The court did not, however, find IM to be generic.)

Other case law also indicates Google shouldn’t think the inclusion is “appropriate.” The Seventh Circuit advises that “[a] serious trademark holder is assiduous in endeavoring to convince dictionary editors, magazine and newspaper editors, journalists and columnists, judges, and other lexicographically influential persons to avoid using his trademark to denote anything other than the trademarked good or service.” Illinois High School Ass’n. v. GTE Vantage, Inc., 99 F.3d 244 (7th Cir. 1996).

One redeeming quality of the definition is that “googling” is limited to using Google and not conducting searches in general. But perhaps Google’s domination of the search market makes it think that when someone talks of “conducting a search” (now a/k/a “googling”), he or she could not possibly be talking about using Yahoo!, MSN, or Ask.com.

July 2, 2006 Privacy

Blogger does not have to disclose information obtained in investigation for story

A recent decision from the United States District Court for the Northern District of Illinois in the case of Bond v. Utreras examines the scope of discovery available from a nonparty who may have information relating to a matter. What makes the case provocative is that the party from whom discovery was sought is a blogger. Unlike the recent California Court of Appeal decision in O’Grady v. Superior Court, 139 Cal.App.4th 1423 (May 26, 2006), the Bond case does not implicate the doctrine of journalistic privilege. It does, however, demonstrate a court’s willingness to favor the confidentiality of facts obtained by one investigating a story. The court recognized and responded to the chilling effect that could occur if bloggers were routinely required by law to disclose information obtained during the investigative process.

Jamie Kalvern “fancies himself as being a voice of the people in the [Chicago housing] projects.” On the blog The View From the Ground, Kalvern published a multipart post titled “Kicking the Pigeon”, which purported to be an account of alleged misconduct by members of the Chicago Police Department. The post provided a significant amount of detail about a particular incident, and stated that it was based in part on interviews with persons having first hand knowledge.

One of the victims of the alleged misconduct filed a civil rights lawsuit against the police officers involved. During discovery, the defendants deposed Kalvern and served him with a broadly-worded subpoena duces tecum seeking, among other things, documents relating to any allegations of misconduct by police officers at the housing project where the incident is said to have taken place. Because Kelvern refused to answer certain questions at the deposition and failed to produce documents pursuant to the subpoena, the defendants moved to compel. The court denied the motion.

The court cited to the case of McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003) which advised that “rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas.” Because Kalvern was a nonparty, the court concluded that he should be entitled to somewhat greater protection than would a party in similar circumstances. Mere relevance of the information would not be enough to justify compelling the disclosures the defendants sought.

Although the court did not go so far as to establish a per se rule for heightened protection for journalists, it did acknowledge that Kalvern’s journalistic efforts would be undermined if he got the reputation of being one ready to disclose confidential information. That would ruin his “street cred”. Accordingly, in light of the circumstances, the court held that forcing to comply with the subpoena, and to answer the deposition questions, would be unduly burdensome.

Bond v. Utreras, No. 04-2617, (N.D.Ill., June 27, 2006).

July 1, 2006 Uncategorized

So now we all know this guy’s ex-girlfriends don’t like him

In Pittsburgh, attorney Todd J. Hollis has filed a defamation suit against the funny little website called dontdatehimgirl.com. Apparently one or more of Hollis’s ex-girlfriends posted some nasty stuff about him on that website. [Fox News has reported on this as well as Techdirt.]

Mr. Hollis should have spent at least a few minutes researching well-established federal law before filing this lawsuit against the operator of the website. Section 230 of the Communications Decency Act, 47 U.S.C. 230, provides, in relevant part that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

The complained-of comments were provided by ex-girlfriends, not the website owner. Ergo, the website owner is not the publisher and cannot be liable for defamation here.

The Fox News account of the story states that Hollis claims that “the site does not have safeguards in place to ensure the truthfulness of items posted on it.”

Too bad. The site doesn’t have to. It’s been almost ten years since Ken Zeran made that same argument in the case of Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997). In that watershed case, the court, in finding AOL immune from liability for defamatory postings by a user of a forum board, observed that “[i]t would be impossible for service providers to screen each of their millions of postings for possible problems.”

And thus the wisdom of immunity under Section 230.

June 23, 2006 Computer Crime, Copyright, Fraud/Misrepresentation

Selling fake software on Amazon.com can get you five years in prison

[Thanks to Tech Law Advisor for alerting me to this case.]

Defendant Banks devised a scheme where he would make copies of various Microsoft products and sell them through Amazon.com to buyers who purchased them cash-on-delivery. After getting orders for at least $300,000 worth of software in this way, the plan began to collapse. Dissatisfied customers turned Banks into the FBI, and a federal grand jury indicted him on several counts, including mail fraud, possessing false securities, and criminal copyright infringement. A jury convicted him, and he got five years in prison.

Banks appealed his conviction and sentence, but the Third Circuit affirmed. On the criminal copyright infringement claim, Banks argued that the government had not introduced sufficient evidence to show that the Microsoft software was protected by copyright.

The criminal provisions of the Copyright Act, at 17 U.S.C. §506 state that

Any person who willfully infringes a copyright shall be punished as provided under [18 U.S.C. §2319], if the infringement was committed– (A) for purposes of commercial advantage or private financial gain; (B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000…. (Emphasis added.)

The court held that evidence introduced at trial through an “antipiracy specialist associated with the Microsoft company” was sufficient to show Microsoft’s ownership of the copyrights in the works. In the specialist’s unrebutted testimony, she stated her “belief” that Microsoft copyrights covered the works at issue. Further, the specialist had testified that Microsoft sent Banks the same type of cease and desist letter as it did to others who were suspected of violating Microsoft’s copyrights.

One is left to wonder why the government did not introduce any of Microsoft’s copyright registration certificates in the course of proving the element of copyright ownership. One would think that that would be the best practice for making such proof. In any event, the question before the court was whether the jury correctly concluded that Microsoft owned the copyrights in the works. The antipiracy specialist’s testimony — even if a bit weak on this point — apparently was enough.

United States v. Vampire Nation, (Slip Op.) — F.3d —, 2006 WL 1679385 (3d Cir., June 20, 2006).

June 19, 2006 Miscellaneous

How will MySpace.com defend itself in the recent assault lawsuit?

Techdirt reports that a Texas teenager and her mother have sued MySpace.com, claiming that it failed to protect the teenager from an alleged predator she met online who assaulted her. It will be interesting to see if and how MySpace might try to use Section 230 of the Communicaitons Decency Act, 47 USC §230, in its defense.

The closest precedent we have to look at is a case called Doe v. America Online, Inc., 783 So.2d 1010 (Fla. 2001). In that case, the Supreme Court of Florida held that 47 U.S.C. §230 preempted a mother’s negligence suit against AOL arising from the illegal conduct of an AOL subscriber. The mother alleged that AOL negligently failed to terminate the account of a subscriber who used a chat room to promote the sale of obscene photographs and videos of the mother’s minor son.

Adopting the Fourth Circuit’s reasoning in Zeran v. America Online, Inc., the court held that finding AOL negligent for its failure to police the conduct of chat room participants would be to treat AOL as a publisher of the complained of conduct. Such treatment would be at odds with the provisions of Section 230, and thus the negligence action was preempted.

In the Doe v. AOL case, the alleged illegal conduct took place online. In the MySpace.com case, the alleged illegal conduct arose from an online meeting, but actually took place offline. Will that difference affect the viability of a Section 230 defense?

June 18, 2006 Trademarks

Macabre result avoided in mortician domain name case

If a court won’t let you use your own name, you might feel like you’re a mere ghost of your former self. That happened to Ed Kalis of Broward County, Florida. In a recent case, Florida’s court of appeal considered whether a trial court’s order against Kalis, enjoining him from using his own last name in various means of advertising and in the URL for his company’s website, was proper.

The appellate court held that the injunction was overkill.

For many years, Kalis worked for Kalis Funeral Home, which his father started in 1959. The family sold the business in 1994, but the funeral home kept the Kalis name, and Kalis stayed on staff. In 2004, Kalis left and moved 100 yards down the street to start up a new “funeral, burial, cremation and mortuarial business.” The name for the new business was a dead ringer of the old one: Ed Kalis Memorial Services.

So you can see the problem here. The owner of the old funeral home was rightfully concerned that people were going to be confused when they saw two very similar businesses with very similar names just down the street from one another. So they filed suit.

Kalis changed the name of his new business to Edwards Cremation & Funeral Services, but the old funeral home still had a bone to pick. The old funeral home asked the court to stop Ed Kalis from listing himself as the licensed director of his new business on signs, in the Yellow Pages, and in the URL for his website.

The court’s opinion is only two pages, so there’s just a skeleton of analysis. It determined that the lower court had abused its discretion in prohibiting Kalis from using his actual name in connection with advertising and in the URL. That prohibition was overbroad.

So it sounds like the injunction was hardly the death knell for Kalis’s new enterprise.

Ed Kalis Memorial Servs., LLC v. McIntee Holdings, LLC, — So.2d —-, 2006 WL 1627131 (Fla.App. 4 Dist., June 14, 2006).

June 12, 2006 Miscellaneous

No COPA cause of action for DaVinci Code documentary

Pro se plaintiff Walter Viola didn’t care too much for The History Channel’s “Beyond the Da Vinci Code” which aired in December 2005. He disliked it so much that he filed a federal lawsuit against A&E Networks, claiming that it had defamed the Catholic church, and that Internet content promoting the show violated both Section 223 of the Communications Decency Act and the Children’s Online Protection Act, 47 U.S.C. §231.

The court easily dismissed Viola’s suit. Judge McVerry of the U.S. District Court for the Western District of Pennsylvania, in adopting the Report and Recommendation of Magistrate Hay, held that neither the CDA nor COPA provide for a private cause of action. “[T]he authority to enforce the CDA lies with the proper government authorities and not with a private citizen such as plaintiff.”

Viola v. A&E Televison Networks, — F.Supp.2d —-, 2006 WL 1549703 (W.D. Pa., June 7, 2006).

June 5, 2006 Personal Jurisdiction

A drop-down menu and a few sales create personal jurisdiction over nonresident website operator

Many of the cases that deal with personal jurisdiction arising from online activity are of limited instructional value, because the defendant often has contacts with the forum state in addition to the contacts made through the Internet. The cases are usually fact-specific, and it is sometimes difficult to distill principles that may apply to other situations where a plaintiff claims that a court should exercise personal jurisdiction over a nonresident party because of something that party did online.

The recent decision in the case of Qwest Comm. Int’l. v. Sonny Corp., however, provides some useful guidance on the question of Internet jurisdiction, because the facts are relatively simple. The defendant has a website through which products are sold, and indeed has fulfilled the orders of at least three customers living in the state where the action was filed.

Telecom giant Qwest sued family-owned Sonny Corporation in federal court in the state of Washington. From its facility in Michigan, Sonny sells educational plush toys called “Qwesties” through the website www.qwesty.com. Qwest alleged, among other things, that Sonny’s use of the name “Qwesty” in connection with toys dilutes the famous Qwest trademark.

Sonny moved to dismiss for lack of personal jurisdiction. The court denied the motion, holding that Sonny purposefully availed itself to the privilege of conducting activity in the state of Washington.

The Qwesty website is simple in its layout and operation. It is not unlike thousands of other small business e-commerce websites. A visitor merely chooses a product for purchase, and, in the process of completing the transaction, selects from a drop-down menu the state to which the product should be shipped. Every state, including Washington, is listed as a choice in this drop-down menu.

Determining that it could exercise personal jurisdiction over the out-of-state defendant, the court applied both the Zippo “sliding scale” test (derived from Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp 1119 (W.D. Pa. 1997)) and the “effects doctrine” of Calder v. Jones, 465 U.S. 783 (1984). Citing to Rio Props. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002), the court held that “[g]enerally, operating at least a passive website, in conjunction with ‘something more’ that demonstrates that the defendant directed activity toward the forum state, is sufficient to confer jurisdiction.”

The court concluded that Sonny’s website is sufficiently interactive under the Zippo test because it is used to “advertise, sell and ship [the] product[s] into customers’ Washington homes.” In holding that Sonny’s conduct satisfied the “effects doctrine,” the court emphasized that sales efforts are “expressly aimed at Washington in that the website lists Washington as an available shipping location and Defendant intentionally ship[s] its product into this state.” Furthermore, that conduct has allegedly caused harm in Washington.

One is left to wonder whether the holding would have been different had Sonny omitted the drop-down menu that included Washington state as a choice. If it were up to the Internet user to manually type in his or her home state, would that render the consumers as the ones doing the “express aiming” and not Sonny? Should a website owner only pre-populate its form fields with the names of states in which it is willing to conduct litigation?

Qwest Comm. Int’l, Inc. v. Sonny Corp., (Slip Op.) 2006 WL 1319451 (W.D. Wash., May 15, 2006).

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