New law to criminalize trickery by adult website owners

July 26, 2006 | by Evan Brown (@internetcases) | Comments Off 

According to this News.com article, President Bush is expected to sign the Child Protection Safety Act (also known as the Walsh Act), touted as “the most extensive rewriting of federal laws relating to child pornography, sex offender registration and child exploitation in a decade.”

The comprehensive legisltation will establish, among other things, a national sex offender registry, and will provide funding for pilot programs to implement GPS technology in tracking convicted sex offenders.

Of particular importance to website owners is a provision in the act that would make it a crime to “knowingly embed[] words or digital images into the source code of a website with the intent to deceive a person into viewing material constituting obscenity.” Moreover, the act would prohibit adding content to a site with “the intent to deceive a minor into viewing material harmful to minors on the Internet.”

Eleventh Circuit almost lets Section 230 preempt right of publicity claim

July 25, 2006 | by Evan Brown (@internetcases) | Comments Off 

In the recent case of Almeida v. Amazon.com, Inc., the Eleventh Circuit Court of Appeals came close to issuing an interesting ruling in a case involving immunity under the Communications Decency Act, at 47 U.S.C. §230. At issue was whether Section 230 provided immunity to Amazon.com in a suit brought against it alleging violation of the plaintiff’s right to publicity.

A photograph of plaintiff Almeida appeared on the cover of a book that Amazon.com offered for sale online. Almeida filed suit claiming, among other things, that she had not authorized the use of the photograph in the way it appeared on the cover of the book. Accordingly, Almeida argued, Amazon.com had violated Florida’s right of publicity statute, Fla. Stat. §540.08.

The district court granted summary judgment in favor of Amazon.com, holding that Section 230 preempted the state right of publicity claim. On review, the appellate court affirmed summary judgment, but disagreed that Section 230 applied.

The lower court had decided on its own (without Amazon.com making the argument) that Section 230 preempted the right of publicity claim. As any loyal reader of this weblog knows, Section 230 provides, in relevant part, that

No 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.

Because Almeida was pursuing a claim against Amazon.com for information (the photo) provided by a third party, the district court held that Amazon.com could not be the “publisher or speaker” of that information, and therefore not liable.

The district court did not consider, however, 47 U.S.C. §230(e)(2), which states that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” Almeida argued on appeal that her right of publicity claim was one sounding in intellectual property, and thus should have been unaffected by Section 230 immunity.

And the appellate court came oh-so-close to agreeing with Almeida on this point. But it found a way around having to answer the question of whether Section 230 provides immunity for right of publicity claims: Almeida’s claim would have failed anyway. Because it was clear from the complaint that Amazon did not use Almeida’s image for “trade, commercial, or advertising purposes,” there was no violation of the right of publicity as defined by the Florida statute.

Almeida v. Amazon.com, Inc., (Slip Op.) — F.3d —-, 2006 WL 1984448 (11th Cir., July 18, 2006).

This content originally posted by Evan Brown to InternetCases.com.

Sometimes “may” means “must”

July 24, 2006 | by Evan Brown (@internetcases) | Comments Off 

Virginia federal court reads publication requirement for in rem jurisdiction under ACPA.

Investools, Inc. recently filed an in rem domain name proceeding against a Canadian entity that registered the domain names investtools.com and investtool.com. In rem domain name proceedings are provided for under the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. 1125(d), and are a handy way for a trademark owner to acquire a domain name from a cybersquatter when the cybersquatter can’t be found e.g., is located outside the U.S. [More on in rem proceedings.]

The ACPA requires that a plaintiff demonstrate four things to establish in rem jurisdiction over a domain name.

– First, the plaintiff must show that subject matter jurisdiction is proper in the district where the action is brought. Since the ACPA provides for jurisdiction in the judicial district in which the domain name registry is located, actions involving .com domain names will be proper in the Eastern District of Virginia for at least as long as Verisign is located there.

– Second, a plaintiff must establish that it is unable to obtain in personam jurisdiction over the defendant where the suit is brought. This is usually pretty easy to do where the registrant is a foreign entity with no ties to the U.S.

– Third, the plaintiff must show that it has perfected service of process as described by the ACPA. Under 15 U.S.C. §1125(d)(2)(A)(ii)(II), this involves:

(aa) sending a notice of the alleged violation and intent to proceed under this paragraph to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar; and

(bb) publishing notice of the action as the court may direct promptly after filing the action.

(It is on this third point that the court made the important ruling in this case. We’ll come back to take a closer look at that after laying out the fourth element.)

– Fourth, a plaintiff must establish the elements of trademark infringement or trademark dilution.

In this case, the court held that Investools had satisfied the first, second and fourth elements for establishing in rem jurisdiction. It would not award summary judgment, however, because of a failure to meet the two-step third element.

Although Investools had sent notice by mailing and emailing the complaint to the listed registrant, it had not published notice of the action as provided for in (bb).

And why should it have? Nothing in the case indicates the court had directed that any publication occur. Apparently, the plaintiff was supposed to have interpreted the case of Cable News Network L.P., L.L.L.P., v. CNNews.com, 177 F.Supp.2d 506 (E.D.Va. 2001) to stand for some permanent order that publication is required in every in rem case.

One could reasonably disagree with the court’s determination that (bb) requires filing in every case. A perfectly sensible interpretation would be that it is required only in those particular actions where the court specifically directs it. But that is not the way the Eastern District of Virginia reads it, and it looks like an in rem plaintiff must publish notice of the action regardless of whether it’s specifically ordered to do so.

Investools, Inc. v. investtools.com, (Slip Op.) 2006 WL 2037577 (July 17, 2006).

Chicago event: Internet/IP seminar with speech by Commissioner of Patents

July 19, 2006 | by Evan Brown (@internetcases) | Comments Off 

There is an exciting intellectual property law event coming up Chicago on the afternoon of July 27, 2006, and the registration deadline (July 21) is quickly approaching.

The Intellectual Property Law Association of Chicago (“IPLAC”) will be hosting an afternoon seminar with three panels addressing copyright, trademark and patent law. The program will end with a keynote address by Commissioner for Patents John Doll.

I will be moderating a panel discussion on copyright. The panel will consist of University of Chicago Professor Doug Lichtman, Northwestern professor Clint Francis, and Sachnoff & Weaver attorney John Hines.

Registration fee is $25 if you’re not an IPLAC member. Here is a link to a registration form. I encourage you to attend.

eBay not a “consumer reporting agency”

July 12, 2006 | by Evan Brown (@internetcases) | Comments Off 

Plaintiff McCready was a seller on eBay who had some dissatisfied customers. They voiced that dissatisfaction by leaving negative feedback about McCready in eBay’s Feedback Forum. Instead of working to “make good on his sales,” McCready embarked on “retaliatory litigation” against a number of individuals and entities, including eBay.

McCready filed lawsuits in different fora around the Midwest, including one in the U.S. District Court for the Central District of Illinois. He alleged, among other things, that eBay violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681 et seq., by providing false and misleading information in the Feedback Forum. The district court dismissed the claim, and McCready sought review. On appeal, the Seventh Circuit affirmed.

To succeed on the FCRA claim, McCready would have had to show that eBay is a “consumer reporting agency” as provided by the statute. He failed to do so, however, because he could not show that the Feedback Forum is a “consumer report.” By definition, a “consumer reporting agency” provides “consumer reports,” and without showing that the Feedback Forum is a “consumer report,” eBay could not be considered a “consumer reporting agency.”

The court held that “given the broad statutory purpose of preserving individuals’ privacy,” a “consumer” under the FCRA must be an identifiable person. The Feedback Forum, however, is arranged by usernames, so anonymity – to the extent eBay sellers so desire – remains intact. Any information about the person behind an eBay username would not be about an “identifiable person” as required by the FCRA.

Citing to the case of Ippolito v. WNS, Inc., 864 F.2d 440 (7th Cir. 1988), the court further held that the FCRA applies only to information that is to be used for consumer purposes, not commercial, business or professional purposes. The Feedback Forum assists eBay shoppers in deciding whether to purchase goods from a particular seller, and that is an “inherently commercial” activity. Without the required consumer purpose, the Feedback Forum could not rise to the level of a “consumer report.”

McCready v. eBay, Inc., — F.3d. —, (7th Cir. July 10, 2006).

Two must reads: one on net neutrality, the other on Section 230 and Wikipedia

July 12, 2006 | by Evan Brown (@internetcases) | Comments Off 

There have been a couple of very interesting articles to appear online in the past few days that I recommend.

Ed Felten has put together a very accessible primer on the technological aspects underlying network neutrality (perhaps more aptly described as network discrimination.) After reading the article, one can see that policymaking concerning the issue is much subtler than it appears at first blush.

Eric Goldman pointed me to a terrific article by Ken Myers called Wikimmunity which is slated to be published in this fall’s Harvard Journal of Law and Technology. Myers provides a detailed roadmap to the conclusion that 47 U.S.C. 230 should permit Wikipedia to escape liability for defamatory content posted by the volunteers who add content to it. It’s a brilliant analysis of Wikipedia’s history, the legislative impulse behind Section 230’s enactment, and the important cases that have applied the law.

“Google” as trademark takes a step toward “genericide”

July 7, 2006 | by Evan Brown (@internetcases) | Comments Off 

Calvin (as in this Calvin, not this one) said “verbing weirds language.”

Yesterday the publishers of the Merriam-Webster dictionary announced that the word “google” has been added to the English lexicon as a verb, meaning “to use the Google search engine to obtain information . . . on the World Wide Web.” [Covered here on SiliconValley.com.]

Surprisingly, a Google spokesman said that the listing is “appropriate.” Is it? Perhaps Google should be concerned that widespread acceptance of the word “google” as a verb could mean that the word is becoming generic — i.e., is becoming the very name of the service the company provides. Generic terms are not subject to trademark protection.

In the case of America Online, Inc. v. AT & T Corp., 243 F.3d 812 (4th Cir. 2001), the court held that the term “IM” was not subject to trademark protection because, among other things, AOL had used the term as a verb. The court also pointed to books, dictionaries, and glossaries defining “instant message” with the “IM” designation. (The court did not, however, find IM to be generic.)

Other case law also indicates Google shouldn’t think the inclusion is “appropriate.” The Seventh Circuit advises that “[a] serious trademark holder is assiduous in endeavoring to convince dictionary editors, magazine and newspaper editors, journalists and columnists, judges, and other lexicographically influential persons to avoid using his trademark to denote anything other than the trademarked good or service.” Illinois High School Ass’n. v. GTE Vantage, Inc., 99 F.3d 244 (7th Cir. 1996).

One redeeming quality of the definition is that “googling” is limited to using Google and not conducting searches in general. But perhaps Google’s domination of the search market makes it think that when someone talks of “conducting a search” (now a/k/a “googling”), he or she could not possibly be talking about using Yahoo!, MSN, or Ask.com.

Blogger does not have to disclose information obtained in investigation for story

July 2, 2006 | by Evan Brown (@internetcases) | Comments Off 

A recent decision from the United States District Court for the Northern District of Illinois in the case of Bond v. Utreras examines the scope of discovery available from a nonparty who may have information relating to a matter. What makes the case provocative is that the party from whom discovery was sought is a blogger. Unlike the recent California Court of Appeal decision in O’Grady v. Superior Court, 139 Cal.App.4th 1423 (May 26, 2006), the Bond case does not implicate the doctrine of journalistic privilege. It does, however, demonstrate a court’s willingness to favor the confidentiality of facts obtained by one investigating a story. The court recognized and responded to the chilling effect that could occur if bloggers were routinely required by law to disclose information obtained during the investigative process.

Jamie Kalvern “fancies himself as being a voice of the people in the [Chicago housing] projects.” On the blog The View From the Ground, Kalvern published a multipart post titled “Kicking the Pigeon”, which purported to be an account of alleged misconduct by members of the Chicago Police Department. The post provided a significant amount of detail about a particular incident, and stated that it was based in part on interviews with persons having first hand knowledge.

One of the victims of the alleged misconduct filed a civil rights lawsuit against the police officers involved. During discovery, the defendants deposed Kalvern and served him with a broadly-worded subpoena duces tecum seeking, among other things, documents relating to any allegations of misconduct by police officers at the housing project where the incident is said to have taken place. Because Kelvern refused to answer certain questions at the deposition and failed to produce documents pursuant to the subpoena, the defendants moved to compel. The court denied the motion.

The court cited to the case of McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003) which advised that “rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas.” Because Kalvern was a nonparty, the court concluded that he should be entitled to somewhat greater protection than would a party in similar circumstances. Mere relevance of the information would not be enough to justify compelling the disclosures the defendants sought.

Although the court did not go so far as to establish a per se rule for heightened protection for journalists, it did acknowledge that Kalvern’s journalistic efforts would be undermined if he got the reputation of being one ready to disclose confidential information. That would ruin his “street cred”. Accordingly, in light of the circumstances, the court held that forcing to comply with the subpoena, and to answer the deposition questions, would be unduly burdensome.

Bond v. Utreras, No. 04-2617, (N.D.Ill., June 27, 2006).

So now we all know this guy’s ex-girlfriends don’t like him

July 1, 2006 | by Evan Brown (@internetcases) | Comments Off 

In Pittsburgh, attorney Todd J. Hollis has filed a defamation suit against the funny little website called dontdatehimgirl.com. Apparently one or more of Hollis’s ex-girlfriends posted some nasty stuff about him on that website. [Fox News has reported on this as well as Techdirt.]

Mr. Hollis should have spent at least a few minutes researching well-established federal law before filing this lawsuit against the operator of the website. Section 230 of the Communications Decency Act, 47 U.S.C. 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.”

The complained-of comments were provided by ex-girlfriends, not the website owner. Ergo, the website owner is not the publisher and cannot be liable for defamation here.

The Fox News account of the story states that Hollis claims that “the site does not have safeguards in place to ensure the truthfulness of items posted on it.”

Too bad. The site doesn’t have to. It’s been almost ten years since Ken Zeran made that same argument in the case of Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997). In that watershed case, the court, in finding AOL immune from liability for defamatory postings by a user of a forum board, observed that “[i]t would be impossible for service providers to screen each of their millions of postings for possible problems.”

And thus the wisdom of immunity under Section 230.