Attorney Evan Brown

July 9, 2012 Contracts, Copyright, DMCA

DMCA takedown notices are not just for content

Apple using the DMCA to stop early sales of iOS 6.

The infamous Digital Millennium Copyright Act takedown process gets quite a bit of press when content owners such as movie studios and record companies use it to take infringing copies of films or music offline. The safe harbor provisions of the DMCA are at the heart of content-distribution platforms’ defenses against infringement occasioned by users of the platform. (Think Viacom v. YouTube.)

Apple reminds us, however, that the DMCA gives all copyright owners — not just those who own copyrights in content — a mechanism for getting infringing works off the internet. According to this piece on Engadget, Apple has been contacting hosting providers of sites that offer unauthorized copies of the forthcoming iOS 6 for sale.

So the DMCA, acting in the name of copyright protection, provides a remedy for software providers to keep the clamps on parties who may have access to software for their own use (in this case, iOS developers) but go outside the bounds of such use and offer the technology for sale to others.

July 3, 2012 Privacy

Can you snoop if someone has forgotten to log out?

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Need assistance? Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases.

Marcus v. Rogers, 2012 WL 2428046 (N.J.Super.A.D. June 28, 2012)

The answer to that question may depend on whether you knowingly exceed your authorization. A New Jersey court recently held that a defendant was within the bounds of the law when he accessed and printed a co-worker’s personal email after the coworker left the computer without signing out of her account.

can you snoop the email account left on the screen when someone forgets to log out

One morning when defendant, a teacher, sat down in the computer room of the school where he worked to check his email, he bumped the mouse of the computer next to him when he sat his drink down. That stopped the screen saver on the other machine, revealing the inbox of a coworker’s Yahoo account. Defendant saw that some of the emails’ subjects mentioned him, so he clicked on them, printed them out, and later used them at an adminstrative meeting to further some points in a work dispute.

The coworkers whose email communications defendant had accessed in this way sued him for violation of New Jersey’s equivalent of the Stored Communications Act (N.J.S.A. 2A:156A–27). The plaintiffs moved for summary judgment on their claim, but the court let the question go to the jury. That jury found defendant had not violated the statute.

Plaintiffs appealed the denial of their motion for summary judgment. On appeal, the court affirmed, holding that the jury properly got the question to consider.

Under the New Jersey statute, a plaintiff has a cause of action if, among other things, another person knowingly:

accesses without authorization a facility through which an electronic communication service is provided, or
exceeds an authorization to access that facility

The court briefly discussed whether the term knowingly applies both to “access without authorization” and “exceeds an authorization”. It held that it does.

Then the court went on to evaluate whether the jury should have gotten the question in the first place.

The court held that as a matter of law, defendant did not access the email account without authorization. Because the “index to the inbox” of the co-worker’s Yahoo account was displayed on the screen when the coworker left the computer, defendant did not access the “facility” without authorization. The accessing of the facility had been accomplished by coworker. There was no evidence of hacking or other unauthorized access to her account.

As for whether defendent exceeded his authorized access, the court held that the lower court properly submitted the question to the jury. The court held that the facts could not preclude a jury finding that defendant did not exceed his authorized access. Indeed, six of the seven deliberating jurors found that defendant had not exceeded his authorization. And all of the jurors found that the coworker had provided “tacit authorization” for him to access the account. (The case does not specify what that evidence of tacit authorization was.)

So the jury’s finding that defendant did not exceed his authorized access stood.

An obvious pro-tip from the case is to remember to log out of shared computers. But the decision is potentially relevant to contexts other than email accounts on desktop computers. Does a person who finds another’s mobile device have the right to rummage through all the accounts (e.g., social media, email, dating sites) that the phone’s owner is logged into? This case underscores that the answer will be, frustratingly, “it depends.” It’s best to put some facts into play — like even the simple requirement of a 4-digit password — to establish contours for authorization which, when exceeded, are clear.

June 12, 2012 Litigation

Court says insurance company should have used social media to track down its insured

Cotto v. Universal Underwriters Ins. Co., 2012 WL 2093331 (Mass.App.Ct. June 12, 2012)

Failure to consult Myspace and Facebook kills defense in insurance coverage case.

Plaintiff sued defendant insurance company after the insurance company refused to pay a judgment against its insured — plaintiff’s former friend and driver of the car in an accident that injured plaintiff. The insurance company claimed that because its insured was uncooperative, it did not have to pay. The trial court agreed with the insurance company and threw the case out on summary judgment. Plaintiff sought review with the Appeals Court of Massachusetts. On appeal, the court reversed and remanded.

At issue was whether the insurance company had exercised due diligence in locating its insured. The court held that summary judgment was improper because the court was unable to conclude, as matter of law, that the insurance company carried its burden of proving that it exercised due diligence.

In evaluating the (lack of) efforts the insurance company had undertaken, the court observed that although there was evidence in the record that the insured had Myspace and Facebook accounts, there was nothing to indicate the insurance company or its investigators consulted these sites. Given the insureds “youth and transient lifestyle,” and the “importance of social media sites as centers of communication and sources of information,” the court found that a reasonable trier of fact could conclude that the insurance company could have done more to locate its insured.

May 30, 2012 Privacy

Is there a constitutional right of privacy in a family member’s autopsy photos?

Marsh v. County of San Diego, — F.3d —, 2012 WL 1922193 (9th Cir. May 29, 2012)

Yes, there is now. At least in the Ninth Circuit. Since the defendant was found to be not liable for violation of that right because of qualified immunity, an appeal is unlikely and the ruling will probably stand.

autopsy table

Background

When defendant Coulter retired from the district attorney’s office, he kept a photocopy of an autopsy photo (of a 2-year old boy with head injuries) from one of the cases he tried in 1983. What’s even more bizarre is that defendant turned over the photo and a memo to a newspaper and television station.

When the mother of the deceased little boy who appeared in the photo heard about this, she sued the district attorney and the county for violation of her due process rights under the Fourteenth Amendment of the United States Constitution.

The trial court threw out the case on summary judgment. Plaintiff sought review with the Ninth Circuit. Though the court found defendant was not liable for a constitutional violation because of qualified immunity, it held that plaintiff had a constitutionally protected right to privacy over her child’s death images.

Due Process

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution has been held to protect “a right of personal privacy, or a guarantee of certain areas or zones of privacy.” Carey v. Population Servs. Int’l, 431 U.S. 678, 684 (1977) (quoting Roe v. Wade, 410 U.S. 113, 152 (1973)). This privacy right is of two types: (1) the individual interest in avoiding disclosure of personal matters, and (2) the interest in independence in making certain kinds of important decisions concerning, for example, family relationships and child rearing.

In this case, the court observed that other courts, including the Supreme Court, had recognized a common law (but not constitutional) protection against the disclosure of a deceased family member’s death scene photos. But this case was the first time a court held that protection against public disclosure of such photos was a constitutionally protected right under substantive due process.

The court noted that “the well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased has long been recognized at common law.” Because such sensibility is so deeply-rooted in our culture, the test for both types of substantive due process were met in this case. Protecting the interest would serve to avoid the disclosure of the graphic details of a family member’s tragic death (which reveals much about the manner of death and extent of suffering). In the context of a child’s autopsy photos, the right of a parent to determine the “care, custody and control” of the child is protected by a federal privacy right against public disclosure.

State Law – Procedural Due Process

The court held that plaintiff’s procedural due process rights were violated by the disclosure of the autopsy photo. California has a statute — Cal.Civ.Proc.Code § 129 — that codifies the state’s public policy against the reproduction of post-mortem photos for improper purposes. This served to create a liberty interest in plaintiff that could not be taken away without due process. The court found that plaintiff had sufficiently alleged a claim of violation of the statute and, therefore, a deprivation of a state-created liberty interest.

Photo credit: atluxity under this license.

May 23, 2012 Trade Secrets

IBM’s Siri ban underscores important business concern over trade secrets

IBM doesn’t let its employees use Siri, out of concern Apple may store and use sensitive IBM data. This decision on IBM’s part underscores an important business concern that companies of all sizes — not just behemoths like IBM — either have or should have.

internet anonymity

Apple’s data usage policy that governs how it treats Siri inquiries says that Apple can use the information it collects to, among other things, improve the service. That’s a pretty broad grant of authority. Because the system that makes Siri available is so complex and multifaceted, Apple could reasonably justify extracting and using the information contained in just about any question people ask Siri. When that information comes from another major player in the competitive space, the implications of the appropriation of proprietary information become obvious.

IBM’s big concern is likely focused squarely on the protection of its trade secrets. State law provides the contours of trade secrets law, so the elements vary from state to state. But in general, a company can enforce its exclusive rights to possess and use information that (1) gives that company a competitive advantage, and (2) which is subject to efforts to keep secret. That latter part — keeping the information secret — is a big reason for nondisclosure agreements, password protected servers, and sensible restrictions on employee use of third party technologies (like social media and search tools like Siri).

Evan Brown is a Chicago technology and intellectual property attorney, representing businesses and individuals in a variety of situations, including matters dealing with the identification and protection of confidential business information.

Photo credit: Spec-ta-cles under this license.

May 22, 2012 Anonymity, Defamation, First Amendment

Does the constitution protect anonymity?

Yes, the constitution protects one’s right to speak anonymously, but only to a certain extent. The question of one’s First Amendment right to speak anonymously comes up pretty often in situations where a plaintiff seeks to unmask the identity of someone who is alleged to have committed an illegal act against the plaintiff online. Most often it is a plaintiff seeking to unmask an online critic in a defamation lawsuit.

internet anonymity

In 1995, the U.S. Supreme Court held in McIntyre v. Ohio Elections Commission that a state statute prohibiting the distribution of anonymous campaign literature was unconstitutional. The court said that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” 514 U.S., at 342.

One would be hard pressed to overstate the importance of anonymous speech. Three and a half decades before the McIntyre decision, the Supreme Court observed that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Talley v. California, 362 U.S. 60, 64 (1960). And “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

But free speech protection has its limits. A person does not have a First Amendment right to defame another. So when one party seeks to “de-anonymize” another using the court system, the judge must strike a balance between the plaintiff’s right to seek redress and the defendant’s interest (if any) in remaining anonymous.

Courts have come up with a variety of balancing tests. Though different courts have come up with different ways of conducting the analysis, the test always involves looking at the strength of the facts the plaintiff puts in his or her initial filing. The more likely it appears there is real defamation, for example, the less likely the anonymous speech will be protected. If the strength of those allegations gets beyond a certain tipping point, the risk of an anonymous free speech violation becomes outweighed by the need for the plaintiff to get relief for the unprotected, unlawful speech.

Evan Brown is a Chicago technology and intellectual property attorney, representing businesses and individuals in a variety of situations, including matters dealing with online anonymity and anonymous speech.

Photo credit: petter palinder under this license.

May 21, 2012 Copyright, Privacy

Social media legal best practices: some problems and solutions with uploading photos and tagging people

Facebook, Flickr, 500px and mobile sharing applications such as Instagram have replaced the hard copy photo album as the preferred method for letting others see pictures you have taken. Now photos are easy to take and easy to share. This easiness makes a number of legal questions potentially more relevant.

Embarrassing photos

Let’s be honest — every one of us has been in photos that we do not want others to see. It may be just bad lighting, an awkward angle, or something more sinister such as nudity or drug use, but having a photo like that made public would cause embarrassment or some other type of harm. Sometimes the law affords ways to get embarrassing photos taken down. To the same extent the law can help, the one posting the embarrassing photo puts himself at risk for legal liability.

Invasion of privacy. If someone takes a picture of another in a public place, or with a bunch of other people, the subject of the photo probably does not have a right of privacy in whatever he or she is doing in the photo. So the law will not be helpful in getting that content off the internet. But there are plenty of situations where the subject of a photo may have a privacy interest that the law will recognize.

“Intrusion upon seclusion,” as its name suggests, is a legal claim that one can make when someone has intentionally intruded — physically or otherwise — upon their solitude or seclusion. Surreptitiously taken photos of a person in her own home, or in a place where she expected privacy (e.g., in a hotel room or dressing room) would likely give rise to an unlawful intrusion upon seclusion.
“Publication of private facts” is another form of invasion of privacy. A person commits this kind of invasion of privacy by publishing private, non-newsworthy facts about another person in a way that would be offensive to a reasonable person. Posting photos of one’s ex-girlfriend engaged in group sex would be considered publication of private facts. Posting family pics of one’s nephew when he was a kid would not.

Photoshop jobs

Some people enjoy using Photoshop or a similar advanced photo editing application to paste the head of one person onto the body of another. (Reddit has an entire category devoted to Photoshop requests.) This can have drastic, negative consequences on the person who — through this editing — appears to be in the photo doing something he or she did not and would not do. This conduct might give rise to legal claims of infliction of emotional distress and defamation.

Infliction of emotional distress. We expect our fellow members of society to be somewhat thick-skinned, and courts generally do not allow lawsuits over hurt feelings. But when it’s really bad, the law may step in to help. One may recover for infliction of emotional distress (sometimes called “outrage”) against another person who acts intentionally, and in a way that is extreme and outrageous, to cause emotional distress that is severe. Some states require there to be some associated physical harm. A bride who sued her photographer over the emotional distress she suffered when the photographer posted pictures of her in her underwear lost her case because she alleged no fear that she was exposed to physical harm.

Defamation. A person can sue another for defamation over any “published” false statement that harms the person’s reputation. Some forms of defamation are particularly bad (they are called defamation per se), and are proven when, for example, someone falsely states that a person has committed a crime, has engaged in sexually immoral behavior, or has a loathsome disease. A realistic Photoshop job could effectively communicate a false statement about someone that is harmful to his or her reputation.

Copied photos

Since copying and reposting images is so easy, a lot of people do it. On social media platforms, users often do not mind if a friend copies the photos from last night’s dinner party and reuploads them to another account. In situations like these, it’s simply “no harm, no foul.” Technically there is copyright infringement going on, but what friend is going to file a lawsuit against another friend over this socially-acceptable use? The more nefarious situations illustrate how copyright can be used to control the display and distribution of photos.

In most instances, the person who takes a photo owns the copyright in that photo. A lot of people believe that if you appear in a photo, you own the copyright. That’s not true unless the photo is a self portrait (e.g., camera held at arm’s length and turned back toward the person, or shot into the mirror), or unless the person in the photo has otherwise gotten ownership of the copyright through a written assignment (a much rarer situation).

A person who finds that his or her copyrighted photos have been copied and reposted without permission has a number of options available. In the United States, a quick remedy is available under the notice and takedown provisions of the Digital Millennium Copyright Act. The copyright owner sends a notice to the platform hosting the photos and demands the photos be taken down. The platform has an incentive to comply with that demand, because if it does, it cannot be held responsible for the infringement. Usually a DMCA takedown notice is sufficient to solve the problem. But occasionally one must escalate the dispute into copyright infringement litigation.

Some other things to keep in mind

With the protections afforded by free speech and the difficulties involved in winning an invasion of privacy or infliction of emotional distress lawsuit, one can get away with quite a bit when using photos in social media. One court has even observed that you do not need a person’s permission before tagging him or her in a photo.

A person offended by the use of a photo by him or of him may have recourse even in those situations where it is not so egregious as to give him a right to sue. Social media platforms have terms of service that prohibit users from harassing others, imitating others, or otherwise engaging in harmful conduct. The site will likely remove content once it is made aware of it. (I have sent many requests to Facebook’s legal department requesting content to be removed — and it has been removed.) The norms of social media communities play an important role in governing how users treat one another, and that principle extends to the notions of civility as played out through the use of photos online.

Evan Brown is a Chicago technology and intellectual property attorney. He advises businesses and individuals in a wide range of situations, including social media best practices.

Photo credit: AForestFrolic

Court tosses copyright claims against 244 accused BitTorrent infringers

Digital Sins, Inc. v. John Does 1–245, 2012 WL 1744838 (S.D.N.Y. May 15, 2012)

Plaintiff Digital Sins filed a copyright lawsuit against 245 anonymous BitTorrent users. The court dismissed the case against all but one of the unknown John Does, finding that the defendants had been improperly joined in one lawsuit. The judge observed that “there is a right way and a wrong way to litigate [copyright infringement claims], and so far this way strikes me as the wrong way.”

Federal Rule of Civil Procedure 20(a)(2) provides that defendants can be joined into one case if, for example, the plaintiff’s right to relief arises out of the same transaction, occurrence, or series of transactions or occurrences, or if there is any question of law or fact common to all defendants.

In this case, the court found that those requirements had not been met. Plaintiff’s allegations that the defendants merely commited the same type of violation in the same way, did not satisfy the test for permissive joinder under Rule 20. There was no basis, according to the court, to conclude that any of the defendants was acting other than independently when he or she chose to access the BitTorrent protocol.

The court went on to find that having all the defendants joined in one action would not give rise to any valid judicial economy. Any such economy from litigating all the cases in a single action would only benefit plaintiff, by not having to pay separate filing fees to sue each defendant. Moreover, trying 245 separate cases in which each of 245 different defendants would assert his own separate defenses under a single umbrella would be unmanageable.

Photo credit: nshontz

May 18, 2012 Governance, Miscellaneous, Privacy

Are network neutrality and freedom from government surveillance incompatible?

The FBI would like to see Congress amend CALEA (the Communications Assistance for Law Enforcement Act). FBI director Mueller recently testified that his agency wants legislation that will assure internet service providers “have the capability and the capacity to respond” to court orders allowing the eavesdropping on a person’s internet communications.

CALEA currently requires that telecommunications companies expeditiously make their equipment, facilities, and services available to the government for wiretapping. Presumably, federal law enforcement would like to see this expanded to bind ISPs and other non-telecom entities.

We see a similar division of the world into telecom and non-telecom in the discussion of network neutrality. Many in favor of network neutrality laud the FCC’s efforts to bring ISPs into the agency’s scope of power to help ensure those providers of internet infrastructure do not discriminate on the basis of content source.

But do you see the potential problem here? If an individual is in favor of network neutrality and also wary of overzealous government wiretapping, he or she must be careful to not allow advocacy of federal power in one arena (enforcing network neutrality) to bleed over, even by analogy, to advocay of federal power in the other arena (surveillance). Participants in these discussions are advised to keep the ideological origins of the respective positions in mind.