Peer-to-peer Litigation Summit planned for Chicago on November 3, 2005

October 12, 2005 | by Evan Brown (@internetcases) | Comments Off 

If you’re interested in the legal issues surrounding file-sharing in a post-Grokster world, and will be in Chicago on November 3, be sure to attend the First Annual P2P Litigation Summit scheduled to take place at Northwestern University School of Law. Here’s an announcement from attorney Charles Lee Mudd Jr., one of the event’s primary organizers:

On November 3, 2005, the Electronic Frontier Foundation and I (through my firm Privacy Resolutions P.C.) will co-sponsor the First Annual P2P Litigation Summit in Chicago, Illinois at the Northwestern University School of Law. The daylong conference brings together public and private defense attorneys, clients, investigators, advocates, and academics to discuss the latest developments in peer-to-peer litigation. How do the RIAA and MPAA go about identifying plaintiffs? What are the most effective legal strategies and tactics? Is it better to settle immediately, or fight it out in the courts? How is this impacting the individuals sued? What is the role of ISPs in this quagmire? Should Congress step in and, if so, what legislation is needed? Are there other ways to compensate authors for their works?

A complete agenda and registration information can be found at http://www.p2plitigationsummit.com. Registration is $150.00 per person and $40.00 per person for students.

Court tosses author’s suit against Amazon.com over negative book reviews

October 12, 2005 | by Evan Brown (@internetcases) | Comments Off 

Plaintiff Hammer, a self-published author of books on handwriting analysis and hypnosis, sued Amazon.com, alleging causes of action for defamation, copyright infringement, breach of contract, violation of the First Amendment right to free speech, discriminatory business practices, and conversion. As characterized by the court, the plaintiff essentially claimed that Amazon had unlawfully colluded with an individual who posted several negative reviews of plaintiff’s books. The plaintiff also claimed that Amazon acted unlawfully by removing plaintiff’s books from its listings.

Amazon moved to dismiss the plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6), and the court granted the motion. It held that the allegations of defamation could not stand, as the negative reviews could not be construed as anything other than opinion. The claim of copyright infringement failed because the complaint contained no allegations that Amazon had copied the plaintiff’s work. There could not be any breach of contract, as Amazon was clearly within its rights to terminate its contract with the plaintiff after providing advance notice (which Amazon did). The First Amendment claim failed as a matter of law because Amazon was not a state actor. The discriminatory business practices claim was dismissed because Amazon had the right to independently choose not to do business with the plaintiff. Finally, the court dismissed the conversion claim because the plaintiff had merely re-styled a contract claim, thus that count was preempted.

In addition to dismissing the plaintiff’s complaint in its entirety, the court entered a permanent injunction, enjoining the plaintiff from commencing any subsequent action relating to book reviews on Amazon.com or Amazon’s refusal to do business with him.

Hammer v. Amazon.com, — F.Supp.2d —, 2005 WL 2467046 (E.D.N.Y., Sept. 27, 2005).

Delaware decision defines standards for protecting anonymous Internet speech

October 11, 2005 | by Evan Brown (@internetcases) | Comments Off 

The recent case of Doe v. Cahill, coming to us from the Supreme Court of Delaware, illustrates a court’s willingness to ensure adequate safeguards to protect anonymous speech on the Internet.

In September of 2004, an anonymous visitor to a Smyrna, Delaware community weblog posted comments about city councilman Patrick Cahill, which Cahill believed to be damaging to his reputation. Cahill filed a defamation lawsuit. Because he did not know the identity of the anonymous commenter, he filed suit against “John Doe,” and began procedures under Delaware law to discover Doe’s true identity. Cahill learned that Doe used Comcast as an Internet service provider, and obtained a court order requiring Comcast to disclose Doe’s real name.

As required by the federal Cable Communications Policy Act of 1984, at 47 U.S.C. §551(c)(2), Comcast notified Doe of the request for information about his identity. [More on the Cable Communications Policy Act.] In response, Doe sought an emergency protective order to bar Comcast from turning over his information. The trial court denied Doe’s request for a protective order, and held that Cahill could obtain Doe’s identity from Comcast. Doe appealed directly to the Delaware Supreme Court. On appeal, the Court reversed the lower court’s decision.

The Supreme Court determined that the trial court had applied too low a standard in testing whether Comcast should be ordered to turn over Doe’s identity. The trial court had applied a “good faith” standard, namely, that disclosure was warranted because Cahill had established through his pleadings that he had a legitimate, good faith basis on which to bring the defamation claim.

The Supreme Court held that such a low standard was not sufficient to protect one’s right to speak anonymously. The lower, good faith standard might encourage meritless lawsuits brought merely to uncover the identities of anonymous critics. Accordingly, the Supreme Court adopted a standard “that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.”

The Court held that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process, he must come forth with facts sufficient to defeat a summary judgment motion. Said another way, before a Delaware court will order an anonymous speaker to be unmasked, the plaintiff has to present evidence creating a genuine issue of material fact for each element of the defamation claim.

Applying that standard to the present case, the court held that “no reasonable person could have interpreted [Doe's] statements to be anything other than opinion.” The court observed that its conclusion was supported by the “unreliable nature of assertions posted in chat rooms and on blogs.” The case was dismissed.

Doe v. Cahill, — A.2d —, 2005 WL 2455266 (Del., October 5, 2005).
[Full text of decision in PDF]

Legal blogging ethics in this month’s ABA Journal

October 5, 2005 | by Evan Brown (@internetcases) | Comments Off 

American Bar Association members, be sure to check out the October 2005 issue of the ABA Journal, containing the article “Watch What You Say” (p. 59) which features, among others, noted law blogger Ben Cowgill. An online version of the article (minus Ben’s picture which appears on p. 62 of the magazine) is available here.

Harriet Miers on the law and technology

October 3, 2005 | by Evan Brown (@internetcases) | Comments Off 

I’ll leave it to the likes of Chuck Schumer, Ted Kennedy and Russ Feingold to complain incessantly over the next few weeks about not knowing enough about Harriet Miers, President Bush’s most recent nominee to the Supreme Court.

A look over the cases in which Miers has been involved as an attorney is scant on the topic of the law as it relates to technology. However, a quick search reveals that Miers and her Dallas firm Locke Liddel & Sapp have represented such heavyweights as Microsoft and RealNetworks. Notable decisions in cases where Miers was among the counsel of record include:

Microsoft Corp. v. Manning, 914 S.W.2d 602 (Tex.App. 1995) – Microsoft lost an appeal of the lower court’s grant of class certification in an action alleging breach of warranty, unjust enrichment, violations of the Magnuson-Moss Act, and violations of the Washington Consumer Protection Act. The underlying action dealt with issues surrounding disk compression technology embodied in Microsoft’s 1993 release of MS-DOS 6.0.

Shaw v. Broadcast.com, Inc. 2005 WL 2095770 (N.D. Tex., August 30, 2005) – Defendants Broadcast.com, Inc., Realnetworks, Inc. and Microsoft (represented by, among others, Miers) were awarded summary judgment in a patent infringement lawsuit brought by owners of a patent dealing with efficient transmission of streaming media.

Add another word to the lexicon of non-defamatory terms: “dud”

October 3, 2005 | by Evan Brown (@internetcases) | Comments Off 

This past spring the California Court of Appeal provided an entertaining holding in the case of Vogel v. Felice, letting the world know that the term “dumb ass” is not a defamatory term. [More on the Vogel case.]

Now the Court of Appeals of Michigan continues the effort of building a lexicon of non-defamatory terms with its decision in the case of Hatfield v. Riley. From this case we learn that calling someone a “dud” is apparently okay in the state of Michigan.

Plaintiff Hatfield, a special education teacher, filed suit against defendant Riley after she learned that Riley posted an article on his website that referred to various “DUD teachers.” The lower court threw out Hatfield’s lawsuit on summary judgment. The appellate court affirmed.

As in Vogel, the Michigan court focused on the inability of proving the veracity of the alleged defamatory term. The court concluded that the truth of “dudness” remained inscrutable:

“[D]efendant’s statement regarding plaintiff was not provable as false and was merely a subjective opinion. . . . A question whether someone is a “DUD” teacher is necessarily subjective and not provable as false. In cases where statements reasonably cannot be interpreted as stating actual facts about an individual, those statements are protected under the First Amendment.”

Hatfield v. Riley, 2005 WL 2401628 (Mich.App., September 29, 2005) (Not selected for official publication).