Blog

December 22, 2005 Defamation, Section 230

Communications Decency Act shields web host as “distributor” of defamatory content

Plaintiff Austin, the owner of a travel-related business, accused the owner of one of his business’s competitors of posting defamatory content on the competitor’s website. Austin filed a defamation lawsuit against the company that hosted the website, claiming that it was liable for refusing to take down the alleged defamatory statements.

The web hosting company successfully moved for summary judgment, citing to 47 U.S.C. §230, a portion of the Communications Decency Act of 1996 which 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.” Austin sought review of the trial court’s decision.

Austin argued that the plain language of §230 provides a shield only for liability that would result from being a publisher of defamatory material. Because the web hosting company was a distributor of defamatory content, Austin argued, §230 should not apply, and thus the lower court erred in granting summary judgment on that basis.

The appellate court rejected Austin’s argument, relying heavily on the decision of Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir., 1997). As in Zeran, the court found that Congress had spoken directly to the issue by “employing the legally significant term ‘publisher,’ which has traditionally encompassed distributors and original publishers alike.” The court held that because distributor liability is a subset of publisher liability, it is therefore specifically foreclosed by § 230.

Austin v. CrystalTech Web Hosting, 125 P.3d 389, 2005 WL 3489249 (Ariz. App. Div. 1, December 22, 2005).

Technorati:


December 22, 2005 Spam

Court: Send spam to Washington state and you can be sued there

James Gordon is continuing his legal assault on spam [read about another Gordon case here], and has received a ruling in his favor from a federal court in the state of Washington. The court held that it had personal jurisdiction over an out-of-state company accused of sending spam to Gordon, a Washington resident.

The court found that Gordon presented sufficient facts to show that by knowingly sending commercial e-mails into Washington, advertising its products, the defendant was “doing business” in the state. This was a “purposeful act” done by the defendant, and thus it should have reasonably expected to be haled into a court in Washington for violation of its laws.

Gordon v. Ascentive, LLC, (Slip Op.), 2005 WL 3448025 (E.D. Washington, December 15, 2005).

Technorati:



December 22, 2005 Miscellaneous

Ten intriguing Internet cases from 2005

The end of the year is quickly approaching, and in the spirit of retrospective reflection that accompanies the season, I have compiled this list of intriguing court decisions relating to the Internet handed down during 2005. It’s not a compilation of cases that are necessarily important to the overall development of this area of law (for example MGM v. Grokster is not on the list), but is merely a list of cases that have either off-the-wall facts or surprising/provocative outcomes. Think of the list both as a way to look back on the year, and as a little holiday gift to the loyal readers of this weblog (a group now measured in the several hundreds – thanks for your support!)

The comments for this post are open, so I invite you to note other Internet-related decisions you’ve found notable during the past year which I have not put on this list.

1. O’Brien v. O’Brien, 899 So.2d 1133 (Fla.App., Feb. 11, 2005)

Evidence obtained through use of spyware not admissible

2. Central New York Workers’ Comp. Bar Assn. v. New York Workers’ Compensation Bd., 16 A.D.3d 1066 (App.Div., March 18, 2005)

Internet access to only one party during trial provides unfair advantage

3. Vogel v. Felice, 127 Cal.App.4th 1006 (Cal.App. 6th Dist., March 24, 2005)

“Dumb Ass” is not a defamatory term

4. Liebert Corp. v. Mazur, 827 N.E.2d 909 (Ill.App. 1st Dist., April 5, 2005)

Password protection is not enough to protect trade secrets

5. State v Velardi, 612 S.E.2d 447 (N.C.App., April 5, 2005)

Court upholds admissibility of weblog evidencae used to convict

6. People v. Earle, (Not Reported in N.W.2d), 2005 WL 1224611 (Mich.App., May 24, 2005)

Escort’s website relevant evidence for truthfulness

7. Munster v. Groce, 829 N.E.2d 52, at n. 3 (Ind.App., June 8, 2005)

Even the courts know the Internet is the first place to turn for information

8. Freedman v. America Online, 2005 WL 1899381 (D.Conn., August 9, 2005)

No reasonable expectation of privacy in Internet subscriber information

9. Doe v. Cahill, 884 A.2d 451 (Del., October 5, 2005)

Delaware decision defines standards for protecting anonymous Internet speech

10. Commonwealth v. [___________], — A.2d —, 2005 WL 3196556 (Pa.Super., November 30, 2005)

Criminal record expunged for school librarian arrested for selling discarded copies of National Geographic on eBay

Technorati:

December 20, 2005 Computer Crime, Evidence, Privacy

Kansas Supreme Court overturns conviction because hard drive was searched without valid warrant

Agents of the Kansas State Gaming Agency visited Zeke Rupnick in his office, and questioned him about allegations that he was illegally in possession of confidential business information. The agents seized his laptop computer, and a magistrate in a different county issued a warrant authorizing the search of the hard drive’s contents. Rupnick was convicted of felony computer crime based on the evidence obtained from the laptop.

Before trial, Rupnick sought to suppress the evidence contained on the computer, claiming violation of his Fourth Amendment rights. The trial court denied the motion to suppress. Rupnick sought review with the Kansas Supreme Court, which overturned the conviction.

The court held that the initial seizure of the laptop computer from Rupnick’s office without a warrant was justified, on the basis of probable cause plus the exigent circumstances presented by the possibility that Rupnick could easily delete the relevant data. The later warrant and search of the laptop, however, provided the basis for the reversal of the conviction.

The court began its analysis of the legality of the search by answering the question, which was one of first impression before the court, of whether a warrant must be obtained before the government may search the contents of a personal computer. In answering the question in the affirmative, the court looked to the Tenth Circuit cases of U.S. v. Carey, 172 F.3d 1268 (10th Cir. 1999) and U.S. v. Walser, 275 F.3d 981 (10th Cir. 2001).

In this case, the agents had indeed obtained a warrant before searching the contents of the laptop’s hard drive. However, the warrant failed to comply with the relevant Kansas statute (K.S.A. 22-2503), which requires that the search warrant be executed in the judicial district in which the magistrate judge resides. Because the magistrate that issued the warrant did not reside in the county in which the warrant was executed (i.e., where the search of the hard drive was made), the warrant was invalid, and the search was unlawful.

Despite the government’s argument that the defect in the warrant was a mere “technical irregularity,” the court strictly enforced the statute. The felony conviction was reversed and remanded for further proceedings.

State v. Rupnick, — P.3d —, 2005 WL 3439897 (Kan., December 16, 2005).

[Text of opinion]

December 19, 2005 Cybersquatting, Trademarks, Unfair Competition

Mall owner uses Section 43(a) of Lanham Act to successfully challenge domain name registrations

A few days before the public groundbreaking ceremony for the shopping mall that would be known as Provo Towne Centre, Plaintiff Rasmussen, unaffiliated with the mall, registered the domain name provotownecentre.com. Claiming an intent to start an online shopping mall, he also registered the domain names provotownecentre.biz and provotownecentre.net.

In an arbitration proceeding brought by the owner of the Provo Towne Center mall before the World Intellectual Property Organization (“WIPO”) pursuant to the Uniform Domain Name Dispute Resolution Policy, Rasmussen was found to have registered the domain names in bad faith. As an “apparent appeal” of the WIPO decision, Rasmussen filed suit in a Utah federal court against the mall owner, General Growth Properties, Inc.

General Growth filed several counterclaims against Rasmussen, alleging, among other things, violation of Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a). It then moved for summary judgment on that claim. (It is interesting to note that although the case had at its root the use of a domain name, the opinion makes no mention of the Anticybersquatting Consumer Protection Act, another portion of the Lanham Act specifically drafted to address a cybersquatting case like this one.)

The court granted General Growth’s motion for summary judgment, and ordered the domain names transferred.

In its opinion, the court considered two elements to find that no genuine issue of material fact remained in regard to the alleged violation of Section 43(a). First, the court found that although General Growth’s mark “Provo Towne Centre” was merely descriptive of the services that General Growth provided, there was “exhaustive, unrebutted evidence” to show the term had acquired secondary meaning. Thus, it was protectable as a trademark.

Secondly, the court considered whether the use of the domain name would create a likelihood of confusion with General Growth’s “Provo Towne Centre” mark. It found that confusion would likely occur. The court determined that the marks were virtually identical, and that the bad faith intent found by the WIPO panel had been confirmed in the record before the court. It found the similarities between the parties’ “use and manner of marketing the services” was “problematic,” comparing Rasmussen’s intended online shopping mall with General Growth’s establishment of a successful site promoting the Provo Towne Centre mall. The court also found that the lack of sophistication in the affected consumers and the strength of the Provo Towne Centre mark weighed in favor of a finding of likelihood of confusion.

Accordingly, because General Growth had a protectable mark, and because Rasmussen’s use of the domain name would likely cause confusion, the court held that no reasonable jury would find in Rasmussen’s favor under Section 43(a).

Rasmussen v. General Growth Properties, Inc., 2005 WL 3334752 (D. Utah, December 7, 2005).

Technorati:




December 17, 2005 Copyright

Decision provides guidance on registering a copyright for web pages

Plaintiff Darden filed an application with the Copyright Office to register his claim of copyright in the text, maps and formatting of the website Appraisers.com. The Copyright Office denied the application, and this denial was affirmed each time during two reconsiderations within the Copyright Office. Noting that in general, the formatting of web pages is not copyrightable, the examiners determined, among other things, that Darden’s claim of copyright was too broad: the website as a whole lacked the requisite amount of originality to sustain registration.

Darden sought review in federal court of the Copyright Office’s adverse decision. However, the court affirmed the decision, holding that the denial was not an abuse of discretion. The court determined that the examiners at the Copyright Office had “intelligently account[ed]” for the denial via “reasoned decision making.”

The real problem with Darden’s application was that he was trying to claim copyright not just in the specific textual and graphical elements of the site, but was trying to claim copyright in the basic way the website was laid out. The “unoriginal formatting elements” and “uncreative layout” are not subject to protection, thus could not be included in the registration. The examiners had explained:

[T]he longstanding practice of the Copyright Office is to deny registration of the arrangement of elements on the basis of physical or directional layout in a given space, whether that space is a sheet of paper or a screen of space meant for information displayed digitally.

Accordingly, the Copyright Office was correct when it denied Darden a copyright registration for the style in which many web pages are formatted.

Darden v. Peters, — F.Supp.2d —, 2005 WL 3370676 (E.D.N.C., December 6, 2005).

Technorati:


Law

December 14, 2005 Copyright

Infringement action against eDonkey user will proceed toward trial

In a copyright infringement action pending in the Eastern District of Pennsylvania, the court has refused to grant Paramount Pictures’ motion for summary judgment. Defendant John Davis has been accused of being the “first propagator” – that is, the first person to offer illegal copies for P2P distribution – of last year’s movie “Lemony Snicket’s A Series of Unfortunate Events.”

The court determined that several material issues of fact remained, thus precluding summary judgment. The court ruled that Davis should be allowed to present evidence at trial as to, among other things, whether he was properly identified as the person engaging in infringing activity over the eDonkey network, and whether he was indeed the “first propagator.”

The court put forth a significant amount of effort analyzing Paramount’s claim that Davis should be sanctioned for reformatting his hard drive just a few days after receiving notice of the potential lawsuit against him. Because of this activity, all evidence of whether eDonkey or a copy of the Lemony Snicket movie were ever on Davis’ computer was lost. The court found that given the circumstances, Davis should have known to keep this evidence intact. The court also determined that this “spoliation” of relevant evidence caused significant prejudice to Paramount, resulting in substantial unfairness and the need to deter such conduct in the future. Although the court denied Paramount’s request to enter judgment in its favor because of the spoliation, the court stated that it would consider the deletion of the information in weighing Davis’ liability at trial.

Perhaps the most interesting aspect of this opinion lies not in the legal analysis, but in the detailed explanation by the court of the process by which Paramount monitors file sharing networks to determine whether any copyrighted works are being infringed. There is also a detailed description of the forensics involved in identifying “first propagators.” Anyone interested in the detective work that goes on prior to file-sharing lawsuits would find this case particularly interesting.

Paramount Pictures Corp. v. Davis, 2005 WL 3303861, (E.D. Pa., December 2, 2005).

December 13, 2005 Uncategorized

Wikipedia and the courts

Recently there has been a fair amount of controversy on the reliability of the well-known open source project known as Wikipedia. [See, e.g., here and here.] Although not everyone is convinced that Wikipedia can be trusted to always tell the truth, it is interesting to note that in the past year or so several courts, including more than one federal circuit court, have cited to it to fill in background facts relevant to cases before them. Here are some examples, and the terms or facts elaborated therein:

  • M.K. Plastics Corp. v. Rossi, — N.E.2d —-, 2005 WL 3358644 (Ind.App., December 12, 2005) — “AutoCAD”
  • State v. Kante, 2005 WL 3115377 (Table, Text in WESTLAW), (Iowa App., November 23, 2005). — “French is the official language of the Republic of Guinea.”
  • Neeley v. West Orange-Cove Consol. Independent School Dist., — S.W.3d —-, 2005 WL 3116298, (Tex., November 22, 2005) — “Efficiency”
  • Allegheny Defense Project, Inc. v. U.S. Forest Service, 423 F.3d 215, (3rd Cir., September 15, 2005) — “Understory”
  • U.S. v. Krueger, 415 F.3d 766, (7th Cir., July 28, 2005) — “Shake”
  • Amco Ukrservice & Prompriladamco v. American Meter Co., 2005 WL 1541029, (E.D.Pa., Jun 29, 2005) — “Sea of Okhotsk”
  • Patel v. Shah, 2004 WL 2930914, (Nonpublished/Noncitable) (Cal.App. 4 Dist., Dec 17, 2004) — “Simple majority”
  • Bourgeois v. Peters, 387 F.3d 1303, (11th Cir., October 15, 2004) — “Homeland Security Advisory System”

At least one court, however, has noted the risk of error in relying on an open source project, and refused to consider what Wikipedia had to say. The Tennessee Court of Appeals noted:

Given the fact that this source is open to virtually anonymous editing by the general public, the expertise of its editors is always in question, and its reliability is indeterminable. Accordingly, we do not find that it constitutes persuasive authority. [English Mountain Spring Water Co. v. Chumley, 2005 WL 2756072 (Tenn.Ct.App., October 25, 2005).]

The English Mountain court apparently took this whole notion of reliability pretty seriously. It wouldn’t even take Wikipedia’s word for it that “bottled water” is a “beverage.”

Technorati:

December 13, 2005 Antitrust

Court dismisses antitrust suit over GPL

Plaintiff failed to allege antitrust injury resulting from Free Software Foundation’s use of GPL for Linux.

Plaintiff Wallace filed an antitrust lawsuit against the Free Software Foundation (“FSF”), claiming that FSF was conspiring with the likes of IBM, Red Hat, and Novell to fix the price of the intellectual property in the Linux operating system. Specifically, Wallace alleged that making the software available for free under the General Public License (“GPL”) has an anticompetitive effect, in that developers may be unwilling to create better products, knowing that they will not be rewarded financially for their efforts.

FSF moved to dismiss the complaint, and the court granted the motion. It held that although the allegations set forth a violation of Section 1 of the Sherman Act, the complaint could not survive because Wallace had not sufficiently alleged that he suffered an antitrust injury.

Wallace’s only allegations in this regard were, essentially, that he was unwilling to enter a market where he would have to compete with the free software distributed under the GPL. He had not alleged any injury to himself as a consumer, nor had he alleged injury to the software market as a whole. Because the complaint lacked this essential element of antitrust injury, the court dismissed the action.

Wallace v. Free Software Foundation, Inc., No. 05-618, 2005 WL 3239208 (S.D. Ind., November 28, 2005) (Not selected for official publication).

[Text of opinion]

Technorati:


FSF

Scroll to top