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Palleschi v. Cassano, — N.Y.S.2d —, 2013 WL 322573 (N.Y.A.D. 1 Dept. January 29, 2013)

Petitioner — an emergency medical services supervisor and lieutenant in the New York Fire Department — admitted that he posted a picture to Facebook of a computer screen containing confidential and privileged information about a 911 caller’s complaint of a gynecological emergency. The pic also showed the caller’s name, address and telephone number.

He added the caption, “[c]an’t make this up,” apparently for his 460 friends’ enjoyment.

Petitioner sought review of the Commissioner’s decision to fire him. The court affirmed the decision. If found that in light of the serious nature of the conduct, the penalty did not shock any sense of fairness.

CollegeSource, Inc. v. AcademyOne, Inc., 2012 WL 5269213 (E.D. Pa. October 25, 2012)

Plaintiff sued its competitor, another platform for providing online college transfer services. Among other things, plaintiff alleged that defendant breached plaintiff’s online terms of service, violated the Computer Fraud and Abuse Act, and was unjustly enriched by copying and “scraping” course catalog information from plaintiff’s service and using that collected data to populate defendant’s own database.

Defendant moved for summary judgment on these claims. The court granted the motion.

Breach of Contract

The court held that defendant’s scraping and collection efforts did not fall within the scope of plaintiff’s online terms of service.

Although certain of defendant’s employees had subscribed to plaintiff’s premium services (and thereby agreed to tems of service that prohibited data scraping), the documents and information defendants used were gathered through a different service. Plaintiffs provided a function called “CataLink”, through which colleges could link website visitors to documents stored on plaintiff’s server. End users clicking on those links would not be presented with any terms of service by which to be bound.

Plaintiffs attempted an unsuccessful workaround on this point, arguing that the terms for the subscription services bound users of all “Services” provided by plaintiff (including the separate CataLink services). The court rejected this argument, finding it possible that a typical user may never even have known he visited a CataLink link. Moreover, the court found, if plaintiff had intended its subscriber agreement to include CataLink, it did not make its intention clear.

Unjust Enrichment

The court held that plaintiff’s unjust enrichment claim was preempted by the Copyright Act. Plaintiff asserted that defendant was unjustly enriched because it copied and displayed on its website course descriptions from plaintiff’s catalogs, and in doing so derived a financial benefit. And plaintiff argued that the facts in this case differed substantially from those required to state a claim for copyright infringement, in that defendant had misrepresented, or had taken in an underhanded way. But the court found that these elements (misrepresentation and acting underhandedly) did not avoid preemption. Nor did the element of “benefit conferred” defeat preemption, since a copyright infringer always accepts the benefit of the copyrighted work.

Computer Fraud and Abuse Act

The court found that defendant did not violate the Computer Fraud and Abuse Act, because the documents alleged to have been copied were available to the general public. And since plaintiff obtained the documents using the CataLink service — which, as discussed above was not subject to the terms of service — there were no contractual restrictions to define “without authorization” or “exceed[ing] authorized access” as used in the CFAA.

Image courtesy Flickr user fontplaydotcom under this Creative Commons license.

I spent an afternoon with Neil Armstrong in July 1985, when I was 10 years old. He was my childhood hero. The day I met him was, up to that point, the biggest day of my life. So it has been particularly poignant for me to learn of his death earlier today.

Back then I was really into — or should I say, obsessed with — space flight and astronomy. And I had some nerd cred. My parents gave me an awesome telescope and I was among the first in my community to spot Halley’s Comet when it came around. I went to Space Camp the summer after Challenger exploded. I built and launched model rockets. I read every book about astronomy in our local library. Inspired by Gus Grissom and by Charlie Walker, NASA astronauts who hailed from my county in Indiana, I was set on being an astrophysicist and traveling into space one day. That determination was what made me resilient (or maybe just oblivious) to the jeers I got when I wore my blue NASA flight suit to school one day in fifth grade.

My parents’ good friend Ned Boyer was a fraternity brother of Neil Armstrong’s at the Phi Delt house at Purdue back in the 50’s. Ned and Neil had stayed in touch over the years, and when Ned saw how much I loved space flight and astronomy, and how I idolized the NASA astronauts, he arranged for our families to travel to Lebanon, Ohio to meet Neil.

We met Neil and his then-wife Janet at the historic Golden Lamb restaurant in Lebanon. We sat at a long table for lunch, with Neil at one head of the table, and me at the corner of the table, at his right hand. I asked him the battery of simple-minded questions that a 10 year old geeky kid would ask, like how he would describe the dust on the moon as his boot sank in. I remember also asking him about his and David Scott’s emergency undocking from the Agena during Gemini 8 — a topic on which I imagine he was interrogated less frequently than Apollo 11. In the years since meeting him, I’ve often reflected on what questions I would ask him from a mature perspective, like how does one deal with the profundity of the singular accomplishment of being the only human in the history of the world to ever have the distinction of being the first to step foot on a celestial body other than the Earth.

After lunch we decided to go see the local YMCA which at that time was either new or newly-renovated. I’m not sure of the details, but I know Neil was involved in that project somehow. Here’s the awesome part of that — I rode in the back seat of his beige station wagon while he drove us there. I remember thinking to myself how incredible it was that I was being transported at that moment by the Commander of the Eagle — the very person who uttered those eternal words, “that’s one small step for [a] man, one giant leap for mankind.” We hung out there at the YMCA for awhile longer. That’s where the picture of him and me you see above was taken.

Neil’s family issued a statement earlier today requesting that we should “honor his example of service, accomplishment and modesty.” To say he was modest is an understatement. Though he was one of the most famous people in the world — and indeed one of the most important people in all of history — he never sought to capitalize on his celebrity.

Today we lost one of the most important historical figures of our age. I put Neil Armstrong’s significance in the same category as that of Christopher Columbus. Until today we were all contemporaries of the man who accomplished one of the most meaningful things ever. Now he precedes us. Godspeed, Neil!

Hispanics United of Buffalo, Case No. 3-CA-27872 (NLRB, September 2, 2011)

Folks are talking about the decision handed down by an Adminstrative Law Judge (ALJ) at the National Labor Relations Board (NLRB) last week, finding that a nonprofit employer violated federal law by terminating five employees over a Facebook status update and comments thereto. It is an inherently intriguing case because, as Eric Meyer points out, this is the first time the NLRB has actually issued a ruling that employees were wrongfully fired over Facebook content.

But if you read the decision [PDF], you will see that the NLRB’s decision does not turn on the fact that the communications among the terminated employees took place on Facebook. I am no expert in NLRB matters, but from what I can tell, the ALJ’s analysis is a straightforward look at whether the posting and comments were “concerted activity” which is protected by the National Labor Relations Act.

Here’s a skeletal outline of the analysis:

• It is an unfair labor practice for employers to, among other things, restrain employees from engaging in “concerted activities for the purpose of . . . mutual aid or protection.”
• “Concerted activities” are those engaged in with or on the authority of other employees, not solely by one employee alone, though a single employee’s activities to enlist the support of other employees is protected.
• For there to be a violation, an empolyer must know that the activities were concerted.

In this case, the ALJ found that the terminated employees, by communicating on Facebook, were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [another employee] was going to make to management.” The termination prevented them from taking further group action, and the fact that they were fired as a batch tended to show that the employer knew the activity was concerted. So this was thus an unfair labor practice.

If anything, the fact that the communications were on Facebook — during non-work hours and on the employees’ own computers — fortified the claim that the termination was improper. An employer can argue that employee misconduct during the course of otherwise protected activity can be “so opprobrius as to lose protection.” Among the factors the NLRB is to consider in this “opprobriousness” test is the place of the discussion. The communications on Facebook, although maybe not good for the employer’s PR, were separate from work hours and facilities, so as to help disqualify them from being “misconduct.”