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December 12, 2005 DMCA, Privacy

Unauthorized use of username and password not a “circumvention” under DMCA

The recent case of Egilman v. Keller & Heckman LLP addressed a close question arising under a provision of the Digital Millennium Copyright Act (“DMCA”) found at 17 U.S.C. § 1201. The issue was whether accessing a computer system through the unauthorized use of a valid username and password constitutes an unlawful circumvention of a technological measure. The court held that such conduct is not “circumvention,” and thus not a violation of the DMCA.

Plaintiff Egilman maintained a website that was only available to visitors who entered a correct username and password. He had employed such measures so that only certain people (e.g., his students) would have access. Egilman alleged that, without authorization, the defendants obtained the correct username and password combination, and subsequently gained “improper and illegal” access to the site. He filed suit in federal court asserting, among other things, that the use of the unauthorized username and password was an illegal circumvention of a technological measure, in violation of 17 U.S.C. § 1201.

One defendant moved to dismiss for failure to state a claim, and the others moved for judgment on the pleadings. The court granted the motions.

An essential fact that drove the court’s holding was that the username and password which the defendants allegedly used were the actual username and password which the plaintiff had chosen to protect his website from unauthorized access. For this reason, the defendants were alleged to have merely “used” the technological measure put in place by the plaintiff, and not to have “circumvented” the measure. The court specifically adopted the language and analysis of the case of I.M.S. Inquiry Mgmt. Sys., Ltd. v. Berkshire Info. Sys., Inc., 307 F.Supp.2d 521 (S.D.N.Y. 2004), a case with similar facts and issues.

Quoting from I.M.S., the court stated:

Whatever the impropriety of defendant’s conduct, the DMCA and the anti-circumvention provision at issue do not target the unauthorized use of a password intentionally issued by plaintiff to another entity.

The court went so far as to say:

It was irrelevant who provided the username/password combination to the defendant, or, given that the combination itself was legitimate, how it was obtained. (Emphasis added.)

With this last statement, namely, that the means by which the username and password are obtained is irrelevant, did the court adjudicate a loophole in Section 1201? What if a defendant uses technological means to guess a username and crack a password? In that case, the defendant would ultimately be using the plaintiff’s intended username and password, and thus, according to the court, would merely be “using” and not “circumventing” a technological measure. In such a case, could one really say that for purposes of a Section 1201 analysis, how a username and password are obtained is irrelevant?

Egilman v. Keller & Heckman, LLP, — F.Supp.2d —, 2005 WL 3077260 (D.D.C., November 10, 2005).

[Text of opinion]

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Circumvention

December 10, 2005 First Amendment

Federal obscenity statutes held to be constitutional

Third Circuit reverses dismissal of indictment against website operator.

The recent Third Circuit decision in the case of U.S. v. Extreme Associates is important to the law of the Internet, because from it we learn that the federal statutes which prohibit the distribution of obscene material – over the Internet or otherwise – are not unconstitutional. At least not yet.

Defendant Extreme Associates, the operator of an adult website, was indicted for distributing obscene material in violation of certain federal obscenity statutes (18 U.S.C. 1461 and 1465). The District Court, concluding that the Supreme Court’s pro-privacy decision in Lawrence v. Texas, 539 U.S. 558 (2003) had seriously undermined the constitutionality of the statutes, dismissed the indictment.

On appeal, the Third Circuit concluded that the District Court overstepped its bounds by declaring the statutes unconstitutional, where the Supreme Court has not expressly declared the statutes unconstitutional. The Court reaffirmed this essential statement of the doctrine of stare decisis: “For district and appellate courts in our judicial system, [a Supreme Court decision] dictates the result in analogous cases unless and until the Supreme Court expressly overrules the substance of its decision.”

U.S. v. Extreme Associates, — F.3d —, 2005 WL 3312634 (3d Cir., December 8, 2005).

Detailed coverage of the constitutional issues in this article.

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Law

December 10, 2005 Copyright

Seventh Circuit rules in BMG v. Gonzalez: downloading music via P2P is not fair use

The lawsuits filed by the music industry against individual users of peer-to-peer (P2P) software are beginning to make their way through the court system. The Seventh Circuit has affirmed a lower court’s grant of summary judgment against a user of Kazaa, holding that the downloading of copyrighted music files is not fair use under the Copyright Act.

Defendant-appellant Gonzalez used the Kazaa P2P software to obtain over 1,300 copyrighted sound recordings, some of which were contained on CDs she owned. BMG music and others filed a federal lawsuit against Gonzalez in 2003 alleging copyright infringement. Gonzalez’s defense was that by downloading the songs, she was merely sampling them to see whether she would want to purchase the entire CD. Accordingly, Gonzalez argued, she was not liable for infringement, because her conduct was protected under the doctrine of fair use.

The District Court disagreed, and granted summary judgment in favor of the recording industry plaintiffs. The District Court enjoined Gonzalez from engaging in any further infringement, and ordered her to pay over $22,000 in damages. Gonzalez sought review with the Seventh Circuit, which affirmed.

Judge Easterbrook’s opinion is unequivocal in rejecting Gonzalez’s fair use argument. The Court easily distinguished the present case from Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417 (1984) (also known as the Betamax case).

“This is not a form of time-shifting along the lines of [the Betamax case]. A copy downloaded, played, and retained on one’s hard drive for future use is a direct substitute for a purchased copy – and without the benefit of the license fee paid to the broadcaster.”

The Court’s analyzed Gonzalez’s claim in light the effect of P2P file-sharing on the potential market for the music. The Court emphasized that downloading unlicensed copies of music, even if for the purpose of testing whether one would want to later buy it, directly competes with legitimate means for consumers to sample music they might like.

For example, broadcast radio allows potential music purchasers to listen for free – and the artists and publishers profit in this scenario not only from future sales, but from the royalties paid by the broadcaster. Similarly, in legitimate online services such as iTunes and the revived Napster (who pay artists and publishers agreed-upon royalties), potential purchasers can sample music for little or no cost and later buy the tracks.

The Court noted that these modes of previewing music in an authorized manner “share the feature of evanescence.” Because downloading unlicensed permanent copies from the Internet directly competes with these legitimate means for artists and publishers to generate profit, the only relevant fair use factor weighed against Gonzalez. Accordingly, the District Court was correct to have found that Gonzalez committed copyright infringement.

BMG Music v. Gonzalez, — F.3d — No. 05-1314 (7th Cir., December 9, 2005).

More coverage of this case:

The IPTAblog

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File sharing

December 7, 2005 Podcasts

InternetCases.com Podcast — December 7, 2005

Legal issues relating to “RSS hijacking”



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This edition of the InternetCases.com Podcast deals with the technological and legal issues relating to the recent phenomenon known as “RSS hijacking” or “podjacking.” I talked with Rick Klau, Vice President of Business Development of Feedburner about what RSS hijacking is, and what can be done about it. I then talked with Chicago attorney Kevin Thompson, who has written about RSS feed hijacking on his weblog Cyberlaw Central, and asked him to comment on the possible legal causes of action a victim of RSS hijacking might have in a potential lawsuit.

Running time: 15 min. 35 sec.
File size: 3.56 MB

Music courtesy of Blandy under a Creative Commons license.

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December 6, 2005 First Amendment

Government funds used to stream video of legislative proceedings support taxpayer standing in Establishment Clause action

The U.S. District Court for the Southern District of Indiana handed down a controversial ruling on November 30, 2005, permanently enjoining the Indiana House of Representatives from beginning its meetings with any form of sectarian prayer. One of the issues in the case was whether the plaintiffs had standing to challenge the legislature’s practice.

As part of its analysis in finding in favor of the plaintiffs on the standing issue, the court observed that the House provided streaming video of each of its meetings over the Internet. This video included the invocation. There were a total of 53 opening prayers in the 2005 session, and each of these was “a few minutes in length.” The cost to stream the video over the Internet during the 2005 session was $1.88 per minute.

The court concluded that the taxpayers who had footed the bill for these costs were allowed to bring the action in federal court. The court stated:

In this case, each of the plaintiffs is an Indiana taxpayer. Indiana tax funds are spent on the House practice of prayer by [among other things] streaming video of the prayers over the Internet. Such expenditures are measurable disbursements of government funds, occasioned solely because of the prayer practice. These expenditures are sufficient to support standing for the plaintiff-taxpayers who object to the practice supported by the expenditures.

Hinrichs v. Bosma, — F.Supp.2d —-, 2005 WL 3263883 (S.D.Ind., November 30, 2005).

December 5, 2005 Miscellaneous

Pennsylvania court ensures that good deed goes unpunished

Record expunged for librarian arrested after selling back copies of National Geographic to buy school computers.

Defendant (whose name I’m withholding in this entry in the event anyone does an Internet search for his name someday), a 24-year-old school librarian, rescued some of his library’s back issues of National Geographic from the trash can and sold them on eBay. He used the proceeds from the sale, along with $300 of his own money, to buy six computers for the school. Despite these generous and creative efforts, the school system complained to the district attorney’s office, and defendant was arrested for library theft.

In return for defendant resigning his position as librarian, the district attorney’s office withdrew the charges. Defendant then filed a motion to have the record of his arrest expunged. After the trial court denied the motion, defendant sought review. On appeal, the court held that the trial court applied the wrong burden of proof on the question of expungement, and that the prosecution failed to show why the arrest record should not be expunged.

The appellate court applied the four factors set out in the Pennsylvania Supreme Court case of Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), to determine that the trial court abused its discretion in not ordering the arrest record expunged. The court commented on defendant’s motives: “Although perhaps hasty and not ‘cleared’ sufficiently through the proper channels, we believe [defendant’s] actions demonstrate the creativity and altruism so vital to our public schools.”

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

December 2, 2005 Cybersquatting

No ACPA claim where only dispute was over payment of royalties

Think about how you would answer this question:

Your friend wants to use your car so that he can do his job of delivering pizza. The two of you work out a deal where he can drive the car, on the condition that at the end of each week he will pay you 5% of the tips he collects from his job. Things go as planned for awhile, with your friend paying the agreed upon percentage. After a few weeks, however, he stops paying.

Would he be authorized to keep using the car?

If you answered “no,” then you may disagree with the reasoning of the U.S. District Court for the Northern District of California in the recent case of Fox v. iVillage.

Plaintiffs, who had previously licensed their trademark to defendants in return for the payment of a 5% royalty rate, filed suit in federal court alleging, among other things, violation of the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. 1125(d). Defendants moved to dismiss for lack of subject matter jurisdiction, and the court granted the motion. It found that the case presented merely “a state law contract dispute, not one involving substantive questions of federal law.”

The court ruled that the only dispute between the parties was over the nonpayment of the agreed-upon royalty. Because defendants had been authorized to use plaintiffs’ trademark, the court held, there could be no bad faith intent to profit from the mark. Accordingly, without a valid claim under the ACPA, there was no federal question, and the court was without subject matter jurisdiction.

Reasonable minds may differ as to whether this holding was correct. Doesn’t it seem that if the royalties weren’t being paid, then the use of the trademark was not, as the court concluded, authorized? In other words, wasn’t payment of royalties a necessary condition of authorization? To bring it under the language of the ACPA, doesn’t it seem like continuing to use a trademark as a domain name without paying for it would be in bad faith? Wouldn’t your friend’s continued use of your car be bad faith on his part?

Fox v. iVillage, 2005 WL 3157413 (N.D. Cal., November 23, 2005).

December 1, 2005 Employment

Tennessee Supreme Court rules on “after-acquired evidence” of Internet misuse by employee

Here’s an interesting employment law question arising from the misuse of Internet access by an employee during work hours:

Employee won’t agree to the terms in a new proposed employment contract offered to him as part of a corporate restructuring. As a result, he is terminated. Under the terms of the original employment agreement, Employer begins paying severance to (the now former) Employee. Sometime after the termination, upon a forensic examination of the Employee’s computer, Employer discovers that Employee had been visiting adult websites while at work. The employment agreement had provided that severance would be paid unless Employee was terminated for “gross misconduct.” Can Employer get out of paying severance to Employee based on this after-acquired evidence of gross misconduct?

The answer, at least in Tennessee, is yes. That state’s supreme court has held that after-acquired evidence of this sort can be a defense to breach of contract so long as the employer can show by a preponderance of the evidence that it would have terminated the employee had it known of the misconduct.

Teter v. Republic Parking System, Inc., —S.W.3d —, 2005 WL 316518 (Tenn., November 29, 2005)

November 29, 2005 Podcasts

InternetCases.com Podcast — November 29, 2005

Panel Discussion of Google Book Search

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This edition of the InternetCases.com Podcast is the audio from a panel discussion held on November 29, 2005 at the John Marshall Law School on the issues surrounding Google Book Search (f/k/a Google Print).

Professor Doris Long moderated the discussion. The first panelist to speak was professor Leslie Reis, who addressed various business issues pertaining to the Google Book Search model. Todd Flaming, a practicing attorney and adjunct professor at John Marshall spoke next on the technology behind the project. I spoke next on the legal issues in the cases filed by the Authors Guild and the American Association of Publishers, focusing mainly on the fair use factors of copyright law. After me was professor David Sorkin, who compared the nature of indexing pages in Google Book Search with the process of indexing regular web pages. The final speaker was Tom Keefe, a reference librarian at the John Marshall Law School library, who gave a librarian’s perspective on how Google Book Search could affect the future of research.

Music courtesy of Blandy under a Creative Commons license.

If you enjoy listening to the InternetCases.com Podcast, please vote for it at Podcast Alley.

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