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A reminder to my Chicago-area readers — please consider attending tomorrow’s (2/19) meeting of the Chicago Bar Association’s Cyberlaw and Data Privacy Committee meeting. 12:15 p.m. at 321 South Plymouth Court in Chicago [map]. Dave Donoghue will be speaking about recent cyberlaw developments in the Northern District of Illinois. Satisfaction guaranteed or your money back. The event is free.

Go here: http://micro-hoo.com

Update: It’s going to be Dave Donoghue, who authors the very informative Chicago IP Litigation Blog. If you’re not already reading Dave’s blog, you should be. He does a bangup job of tracking intellectual property decisions coming out of the federal courts here in Chicago. At the 2/19 meeting, Dave will use his perspective gained from paying close attention to the local dockets to speak on the topic of “Northern District of Illinois Cyberlaw Trends”. If you’re in the area, or will be on Februray 19, please consider attending this noon-time event at the Chicago Bar Association building 321 S. Plymouth.

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I’m the vice-chair of the Chicago Bar Association’s Cyberlaw and Data Privacy Committee, and we have a meeting coming up at noon on Tuesday, February 19, 2008. Problem is, our speaker prospects are falling through.

 If you can be in Chicago on 2/19 and would like to address a group of about 20-30 technology savvy attorneys on a topic of interest to you about law and technology, drop me a line [internetcases -at- gmail dot com]. I need to know ASAP, so please respond by the end of the day tomorrow (Friday, 2/1/08).

 CLE credit is of course available. Illinois rules allow you to get up to six hours credit for preparation time for each hour you talk.

Click here if the video is not showing up in the RSS feed.

Night before last I spent three hours on the train ride home. The video above shows the reason for the delay. The train I took that night was backed up and delayed while they sorted out the mess in Hinsdale. Had I left work a few minutes earlier I would have been on the second train, i.e., the one that caused the minivan to burst into flames. Would have been pretty exciting/scary. Thank goodness no one was hurt.

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?

DiMeo v. Max, No. 06-3171 2007 WL 2717865 (3rd Cir. September 19, 2007) (Not precedential)

Last year plaintiff DiMeo sued Tucker Max for defamation over some postings to the message board on Max’s site. Max successfully moved to dismiss the case, arguing that the Communications Decency Act at 47 U.S.C. §230 provided immunity against the defamation claim. [Read about the lower court’s decision.] DiMeo appealed the dismissal to the Third Circuit, but the appellate court affirmed.

Section 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.” 47 U.S.C. § 230(c)(1). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).

The court found that Max’s website was an interactive computer service because it enabled computer access by multiple users to a computer server. Although DiMeo alleged that Max was a publisher of the comments on the website, he did not allege that Max authored the comments, or that he was an information content provider. So the court determined that the website posts were information furnished by third party information content providers and the requirements of § 230 immunity were satisfied.

The court compared this case to an earlier Third Circuit decision, Green v. America Online, 318 F.3d 465, 471 (3d Cir.2003) in which it used §230 to find America Online immune from tort liability stemming from anonymous messages posted in chat rooms.

And although DiMeo argued on appeal that Max was in fact an information content provider because he solicited and encouraged members of the messageboard community to engage in defamatory conduct or was otherwise partially responsible for the conduct, the court found that the complaint was devoid of any such allegations.

Opinion appears below (or click through if the embedded content is not showing up in the RSS feed).

Dennis Kennedy asked me to contribute to a roundtable article that appears in this month’s Law Practice Today, published by the American Bar Association. I think it turned out well despite my participation. See for yourself.

Docstoc is a new “online community and professional network” introduced this week at TechCrunch40 “geared around user generated, professional documents.” The idea is that business people will be able to find documents like nondisclosure agreements online, presumably avoiding lawyers as the middlepeople.

It’s a clever idea. Scribd (which I use from time to time here on Internet Cases) is already doing something similar, but is not geared toward professional documents. So Welcome Docstoc! With more people relying on poorly drafted documents not tailored for their particular situation, there will be more business disputes. That means more work for those whose livelihoods depend on that kind of misunderstanding and discord.

The new version of the GPL (v3) is on its way, and what better time than now to revisit some of the principles underlying open source software. While brushing up on open source concepts, I found this concise yet intelligent rundown of open source issues with an uncommon look at the downside. It’s published by the American Bar Association, so it’s gotta be good. I’m not sure how old it is (how hard would it have been to put a publication date on it?), but it’s clearly still relevant.