September 7, 2010 Copyright, Cybersquatting

Righthaven seeks domain name transfer – relief that is not called for under the Copyright Act

Tactics suggest overreaching on more than just copyright grounds.

News broke over the Labor Day weekend that Righthaven, that enterprise set up to file copyright lawsuits over alleged infringements of articles from the Las Vegas Review-Journal, sued Nevada senate candidate Sharron Angle. The complaint [PDF] contains two claims for copyright infringement over allegations that Angle posted two articles on her website without authorization.

Let’s set aside for a moment any objections or snickering we might have about Righthaven’s approach, or any disdain we may feel about spamigation in general. There’s one paragraph in the Angle complaint which demonstrates a plaintiff mindset that is over the top on just about any reasonable scale.

In addition to the ususal demands for copyright infringement relief in the complaint (e.g., statutory damages, costs, attorney’s fees, injunction, etc.), Righthaven asks that the court:

[d]irect the current domain name registrar, Namesecure, and any successor domain name registrar for the Domain to lock the Domain and transfer control of the Domain to Righthaven.

Say what?

This is a copyright lawsuit, not one for trademark infringement or cybersquatting. Nothing in the Copyright Act provides the transfer of a domain name as a remedy. Such an order would be tantamount to handing the whole website over to Righthaven just because there may have been a couple of infringing items.

The Copyright Act does provide for the impounding and disposition of infringing articles (See 17 USC 503). So it’s plausible that a court would award the deletion of the actual alleged infringing articles. Or if it wanted to be weirdly and anachronistically quaint about it, could order that the infringing files on the server be removed and somehow destroyed in a way additional to just being deleted. In any event, there’s no basis for a court to order the transfer of a domain name as a result of copyright infringement.

I’ll let you, the reader, decide what you will about Righthaven. But if you decide that their tactics are silly, and in some cases uncalled-for, you won’t be alone.

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September 7, 2010 Contracts, Copyright

Software contractor not bound by EULA it clicked on behalf of client

BMMSOFT, Inc. v. White Oaks Technology, Inc., 2010 WL 3340555 (N.D.Cal. August 25, 2010)

Plaintiff, a software development company, sued defendant, a company that was performing software installation services for it client, the U.S. Air Force. Plaintiff alleged that defendant violated the End User License Agreement (“EULA”) for the software by copying and distributing the software in violation of the terms of the EULA.

Defendant moved for summary judgment, arguing that it should not be bound by the EULA, since when it purportedly clicked on the “I Agree” button during installation, it was doing so as an agent on behalf of a disclosed principal, namely, the federal government.

The court agreed, finding that the purchase orders clearly disclosed that defendant would be installing the software on behalf of its government client. And the terms of the EULA were clear in designating that the “You” authorized to use the software was not the defendant, but the government, at the location specified in the order.

So the court threw out the breach of license claim. One is left to wonder why facts that support copying and distribution of the Software in a manner prohibited by the terms of the EULA would not also support copyright infringement. But apparently there was no such claim in this case. Perhaps there are some nuances of the defendant’s conduct that would not necessarily violate a condition, but be merely a breach of covenant.

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September 4, 2010 Litigation

Judge should have let lawyer Google potential jurors during jury selection

Carino v. Muenzen, 2010 WL 3448071 (N.J.Super.A.D. August 30, 2010)

The courthouse in Morris County, New Jersey provides wi-fi access. As jury selection began in a medical malpractice case, the plaintiff’s lawyer used his laptop to do some real time research on the members of the jury pool. The judge noticed the research taking place and called the lawyer out. Here is the exchange between the lawyer and the judge:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFF’S COUNSEL]: Your Honor, there’s no code law that says I’m not allowed to do that. I-any courtroom-

THE COURT: Is that what you’re doing?

[PLAINTIFF’S COUNSEL]: I’m getting information on jurors-we’ve done it all the time, everyone does it. It’s not unusual. It’s not. There’s no rule, no case or any suggestion in any case that says-
….

THE COURT: No, no, here is the rule. The rule is it’s my courtroom and I control it.

The judge made the plaintiff’s lawyer close his laptop.

The trial proceeded and the jury found in favor of the defendant. Plaintiff sought review with the appellate court. On appeal, he argued that the court erred when it prohibited his attorney from accessing the internet during jury selection.

The appellate court found that although a trial judge is given wide discretion to control a trial in his or her courtroom, that authority is circumscribed by the responsibility to act reasonably. In this case, the appellate court found that prohibiting the web searches during voir dire was unreasonable:

There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.

Nevertheless, the court concluded that plaintiff did not demonstrate any prejudice resulting from the trial court’s ruling. He did not identify any juror who was unqualified or as to whom he claimed he would have exercised a peremptory challenge, even though he subsequently had the opportunity to perform an internet search concerning each juror.

The court went on to note that inasmuch as jury selection took two days, plaintiff’s counsel could have researched the prospective juror lists overnight or during breaks, and could have done so before the testimonial portion of the trial started on the third day.

Photo courtesy of croncast under this Creative Commons license.

September 3, 2010 Anonymity, Copyright

New copyright lawsuits go after porn on Bittorrent

Three adult media entertainment producers filed suit yesterday in the U.S. District Court for the Northern District of Illinois alleging copyright infringement against hundreds of anonymous defendants accused of trading videos using Bittorrent. This kind of action resembles the much-criticized mass litigation undertaken by the U.S. Copyright Group against hordes of unknown accused Bittorrent users trading movies like Hurt Locker.

In this case, the subject matter promises to be more provocative. Plaintiff Millennium TGA is known for producing content in the “transsexual adult entertainment niche.” Plaintiff Lightspeed Media Corporation is alleging infringement of content including collections relating to its Jordan Capri and Tawnee Stone websites. Plaintiff Hard Drive Productions produces the Amateur Allure website.

Here are the complaints:

August 19, 2010 Miscellaneous

New Jersey court gives a boon to local printed newspapers

Online edition of out-of-state newspaper not “printed and published” in state for purposes of providing legal notice.

Courier-Post v. County of Camden, — A.2d —, 2010 WL 3025108 (N.J.Super.A.D. August 4, 2010)

Like probably every other state, New Jersey has a statute that requires certain notices (like those for sheriff’s sales) to be published in the newspaper. A county government can place such notice in any newspaper that is “printed and published” in New Jersey. N.J.S.A. 2A:61-1

Camden County, New Jersey officials negotiated a favorable rate with the Philadelphia Inquirer to be the paper to publish the county’s legal notices. (That paper is widely read in Camden County, New Jersey.)

The local paper of course objected and filed suit. A New Jersey court of appeals held that the contract to publish legal notices in the Philadelphia Inquirer was improper because the Philadelphia Inquirer did not meet the requirement that the newspaper be “printed and published” in New Jersey.

One of the argumets that the Philadelphia Inquirer made was that its online version was available for viewing and printing in Camden County by internet users there. The court rejected this argument for a number of reasons.

It found it unlikely that a reader would print out an entire edition of an online newspaper.

The court also looked to a notion first articulated by Oliver Wendell Holmes when he was on the Massachusetts Supreme Court: the home office concept. Under this notion, a newspaper is published where it is “given to the world.”

The court went on to say some interesting things about publishing and the physical nexus between a place and its local news outlets. It raised concerns that a reading of the statute allowing out-of-state online newspapers to pass the “printed and published” in New Jersey test, then any newspaper around the globe would count.

Even more intriguingly, the court observed the perils of eliminating “the physical connection between the newspaper’s operation and the community.” That “physical connection is significant because a local newspaper is where people will ordinarily go for local news whether online or at the local newsstand.”

I bet the folks at places like Patch would take issue with that.

Photo courtesy Flickr user Valerie Everett under this Creative Commons license.

August 18, 2010 Computer Crime, Privacy

Computer Fraud and Abuse Act, the Stored Communications Act, and unauthorized access

Monson v. The Whitby School, Inc., No. 09-1096, 2010 WL 3023873 (D.Conn. August 2, 2010)

Plaintiff Monson sued her former employer (a private school) for sex discrimination and related claims. The school filed counterclaims against Monson for, among other things, violation of (1) the Computer Fraud and Abuse Act (CFAA) and (2) the Stored Communications Act (SCA).

The counterclaims were based on allegations that Monson gained unauthorized access to the school’s email server to unlawfully view and delete email messages contained in the email accounts of other school employees. Upon learning of her impending termination, the school alleged, Monson used this unauthorized access to delete more than 1,500 email messages. Further, the school alleged that after Monson was terminated, she intentionally deleted data and software programs that resided on her school-issued computers before she returned them to the school.

Monson moved to dismiss the counterclaims. The court denied the motion.

CFAA claim

Monson argued that the school had not adequately pled that her actions — accessing and deleting data and software — were unauthorized. The court rejected this argument, finding that while it may be implausible (a la Twombly and Iqbal) that Monson wasn’t authorized to access her own email account, there was no reason to find it implausible she was not authorized to access the email accounts of others.

SCA claim

The court dismissed the SCA claim for essentially the same reason. Monson had argued that the school’s “formulaic” statement that she had accessed the stored electronic communications were not pled with enough detail to state a claim. The court found that the allegations were sufficient.

Photo courtesy of Flickr user croncast under this Creative Commons license.

August 9, 2010 Copyright

State law claims against Turnitin fail

Christen v. Iparadigms, LLC, No. 10-620, 2010 WL 3063137 (E.D.Va. Aug. 4, 2010)

Plaintiff was a graduate student and one of her professors uploaded a couple of plaintiff’s papers to the web-based plagiarism detection service Turnitin. You may remember how the Fourth Circuit held last year that this uploading and use of students’ papers is a protected fair use that would not subject Turnitin to liability for copyright infringement.

Perhaps recognizing the difficulties of a copyright case against Turnitin, plaintiff pursued various state-law, non-copyright claims based on Turnitin’s inclusion of plaintiff’s works in its database. So plaintiff sued for conversion, replevin and unjust enrichment.

The court dismissed all three of these claims, holding that they were preempted by the Copyright Act.

The Copyright Act specifically preempts all state-law rights that are equivalent to those protected under federal copyright law. Many courts apply a two-pronged test to determine if a particular state-law claim is preempted: (1) the work must be within the scope of the subject-matter of copyright, and (2) the rights granted under state law must be equivalent to any exclusive rights within the scope of federal copyright.

The court found that there was “no question” that the works at issue — plaintiff’s unpublished manuscripts — fell within the subject-matter of copyright protection.

It went on to find that plaintiff’s conversion claim was “simply a copyright infringement claim dressed in state-law clothing.” And the rights in the works that the plaintiff asserted — mainly, to use and reproduce the copyrighted work — were exclusive rights granted by the Copyright Act. The conversion claim also failed because plaintiff was not seeking the return or destruction of tangible property, just code stored on the Turnitin server.

The court dismissed the replevin claim on similar grounds. Because there was nothing tangible to be purged or returned, an action in replevin would not be viable. But even more importantly, replevin actions are no longer recognized under Virginia law, as the cause of action was repealed by statute.

Finally, the court held that plaintiff’s unjust enrichment claim failed. Citing to Nimmer and a batch of cases holding unjust enrichment cases to be preempted by the Copyright Act, the court held that a state-law cause of action for unjust enrichment should be regarded as an “equivalent right” to rights granted under the Copyright Act.

August 5, 2010 Defamation, Section 230

Communications Decency Act immunizes hosting provider from defamation liability

Johnson v. Arden, — F.3d —, 2010 WL 3023660 (8th Cir. August 4, 2010)

The Johnsons sell exotic cats. They filed a defamation lawsuit after discovering that some other cat-fanciers said mean things about them on Complaintsboard.com. Among the defendants was the company that hosted Complaintsboard.com – InMotion Hosting.

Sassy is my parents' cat. She hisses whenever I'm around, though they say she's a nice cat otherwise.

The district court dismissed the case against the hosting company, finding that the Communications Decency Act at 47 U.S.C. §230 (“Section 230”) immunized the hosting provider from liability. The Johnsons sought review with the Eighth Circuit Court of Appeals. On appeal, the court affirmed the dismissal.

Though Section 230 immunity has been around since 1996, this was the first time the Eighth Circuit had been presented with the question.

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.” It also says that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

The Johnsons argued that Section 230 did not immunize the hosting company. Instead, they argued, it did just what it says – provides that a party in the position of the hosting company should not be treated as a publisher or speaker of information provided by third parties. The Johnsons argued that the host should be liable in this case regardless of Section 230, because under Missouri law, defendants can be jointly liable when they commit a wrong by concert of action and with common intent and purpose.

The court rejected the Johnsons’ argument, holding that Section 230 bars plaintiffs from making providers legally responsible for information that third parties created and developed. Adopting the Fourth Circuit’s holding in Nemet Chevrolet v. Consumeraffiars.com, the court held that “Congress thus established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them.”

No evidence in the record showed how the offending posts could be attributed to the hosting provider. It was undisputed that the host did not originate the material that the Johnsons deemed damaging.

Given this failure to show the content originated with the provider, the court found in favor of robust immunity, joining with the majority of other federal circuits that have addressed intermediary liability in the context of Section 230.

July 26, 2010 Contracts, Litigation

Forum selection clause in clickwrap agreement enforceable

Meier v. Midwest Recreational Clearninghouse, LLC, 2010 WL 2738921 (E.D. Cal. July 12, 2010)

Plaintiffs live in California and bought an RV online from a vendor in Minnesota. The vendor’s website terms of service had a provision requiring that all disputes “arising out of or related to the use” of the website be brought in state court in Minnesota.

When plaintiffs — who were unhappy about the RV — brought a lawsuit in federal court in California, defendants moved to dismiss for improper venue. The court granted the motion.

The court noted that under the Bremen case, forum selection clauses are prima facie enforceable. And the Carnival Cruise Lines case takes that notion even further, giving forum selection clauses this presumption of enforceability in preprinted agreements.

In this case, plaintiffs argued that the court shouldn’t enforce the forum selection clause because it wasn’t freely bargained for. And they claimed that enforcing it would effectively deny them their day in court.

But that did not sway the judge. The court found that there was no bad faith motive that put the forum selection clause in the clickwrap agreement. And even though litigating in Minnesota might be inconvenient for California residents, it was not enough to bar them from the judicial system.

Moreover, just like the Supreme Court noted in Carnival Cruise Lines, the presence of forum selection clauses can reduce the costs of litigation because they cut down on the number of pretrial motions arguing over venue. And they also help consumers — this cost savings should ostensibly be passed on.

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