Category Archives: Miscellaneous

Domain name not tangible property that could satisfy judgment

Palacio del Mar Homeowners Assn., Inc. v. McMahon, — Cal.Rptr.3d —, 2009 WL 1668294 (Cal. App. 4 Dist. June 16, 2009)

A California state court entered a $40,000 judgment against defendant McMahon in favor of plaintiff homeowners association. The homeowners association tried to collect the money from McMahon, seeking a “turnover” of property McMahon owned. Among the items the homeowners association sought was the domain name ahrc.com, registered in the name of McMahon’s wife.

The trial court permitted the domain name to be turned over to the homeowners association to satisfy the judgment. McMahon sought review with the California Court of Appeal. That court reversed and vacated the turnover order.

The court gave several reasons for reversing the lower court. The most interesting reason, however, dealt with the very nature of domain names. The provision in California law allowing turnover of property limits itself to tangible property that can be “levied upon by taking it into custody.” Looking to the case of Network Solutions, Inc. v. Umbro International, Inc., 529 S.E.2d 80 (Va. 2000), the court held that a domain name registration is not property, but merely supplies the intangible contractual right to use a unique domain name for a specified period of time. Even if the registration were property, it was not something that could be taken into custody.

Slamming Wikipedia’s reliability not enough in immigration case

Badasa v. Mukasey, — F.3d —, 2008 WL 3981817 (8th Cir. Aug. 29, 2008)

Illegal alien Badasa sought asylum in the United States. To establish her identity, she submitted to the Immigration Judge a “laissez-passer” issued by the Ethiopian government. Opposing the application for asylum, the Department of Homeland Security submitted a number of items, including a Wikipedia article, to show that a laissez-passer is merely a document issued for a one-time purpose based on information provided by the applicant. The Immigration Judge was not convinced that the laissez-passer established Badasa’s identity, and denied the application for asylum.

Badasa appealed to the Board of Immigration Appeals, which agreed that asylum should be denied. It soundly criticized Wikipedia’s reliability to establish the meaning of the document at issue, but found there was enough other evidence to support the Immigration Judge’s conclusion that Badasa had failed to establish her identity. But the Board of Immigration Appeals failed to discuss this other evidence, therefore running afoul of the administrative law textbook case of SEC v. Chenery, 318 U.S. 80 (1943).

So the Eighth Circuit sent the case back to the Board of Immigration Appeals to make additional findings. The court observed that the Board of Immigration Appeals found that “Badasa was not prejudiced by the [Immigration Judge's] reliance on Wikipedia, but [the Board of Immigration Appeals] made no independent determination that Badasa failed to establish her identity.” In short, the Board of Immigration Appeals had focused only on why the use of Wikipedia made the case less “solid,” and did not address the lack of solidity found in any of the other evidence connected with the laissez-passer used to establish identity.

Accused blogger did not cause substantial emotional distress

Ramsey v. Harman, — S.E.2d —-, 2008 WL 2415127 (N.C.App. June 17, 2008)

Defendant Harman maintained a blog on which she put up some posts accusing plaintiff Ramsey’s daughter of being a bully. Harman also posted this:

With all the bulling [sic] and harassing that goes on in our school system. Then the trouble that went on Friday at Madison Middle. The first student in that age group that came to mind was [plaintiff]‘s daughter. Wasn’t this the student that harassed the Cantrell child? And we wonder why some kids hate to go to school…..

Ramsey apparently took great offense, filing suit against Harman for “stalking” under North Carolina law, and sought a “civil no-contact order” (like a restraining order) against Harman. The trial court granted the no-contact order and Harman sought review with the state appellate court. On appeal, the court reversed.

Harman argued that the lower court erred in finding that she had violated the state’s anti-stalking law (N.C. Gen. Stat. ยง50C-1(6)). She also argued the order violated her First Amendment rights. Because the court found there was insufficient evidence to support a violation of the statute, it did not need to rule on the constitutional issue.

The main question before the court was whether Harman’s blog posts were intended to cause, and indeed did cause, “substantial emotional distress” to Ramsey and her daughter. The court found there was no such showing. There were no threats of physical harm, and the only evidence as to the effect on the plaintiff’s daughter was that she was “embarrassed” when teachers at school were reading the blog posts. But there was evidence that the school had blocked access to the website, making the claim implausible to begin with. There were no communications directly between the defendant and the plaintiff, and the plaintiff’s daughter’s name was never mentioned. Moreover, there was evidence that the posts were made in retaliation over a disagreement between the Harman and Ramsey which had taken place on a political website, and over an alleged threatening phone call Harman had gotten from some of Ramsey’s family members.

Nominate one or more “Stars of the Blawgosphere” for upcoming Blawg Review

Jonathan Frieden over at E-Commerce Law will be hosting the Independence Day edition of Blawg Review which, in patriotic fashion will be themed “50 Stars of the Blawgosphere.” Go here to make your nominations.

On a related, nostalgic note, hard to believe that it was more than three years ago that Internet Cases hosted Blawg Review 10. John’s turn coming up on July 7 will be number 167!

Negligence claim allowed in laptop theft case

Ruiz v. Gap, Inc., 540 F.Supp.2d 1121 (N.D. Cal. March 24, 2008)

In 2006, Ruiz applied for a job at the Gap and was required to provide his Social Security number. A vendor hired by the Gap for recruiting stored Ruiz’s information on a laptop which, as luck would have it, was stolen.

Though he was not (at least yet) the victim of identity theft, Ruiz sued the Gap for negligence. The Gap moved for judgment on the pleadings which the court also treated as a motion to dismiss for failure to state a claim. The court denied the motion to dismiss as to negligence (and granted the motion as to claims for bailment, unfair competition and violation of the California constitutional right to privacy). But Ruiz’s standing to bring the claim was tenuous.

The Gap had argued that Ruiz lacked standing. His only alleged harm was that he was at an increased risk for identity theft. The court’s analysis of the Gap’s objection to standing focused on the first element of the Lujan test (Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)), namely, whether Ruiz’s alleged injury was “concrete and particularized.”

The Ninth Circuit has held for allegations of future harm to confer standing, the threat must be credible, and the plaintiff must show that there is a “significant possibility” that future harm will ensue. The Lujan case (which is the leading Supreme Court authority on standing) essentially creates a “benefit of the doubt” for plaintiffs at the pleading stage — a court is to presume that general allegations embrace those specific allegations that are necessary to show a particularized injury. Ruiz’s general allegations of the threat of future harm were thus sufficient to confer standing.

But the court gave a warning to Ruiz that the threshold of standing does not apply only to pleadings, but is an indispensable part of a plaintiff’s case throughout. In other words, he’ll have to come up with more later to keep the case in court.

So in denying the motion to dismiss the negligence claim, the court incorporated its standing analysis. The only issue on the point of negligence was whether Ruiz had suffered an injury. Ruiz’s general allegations were sufficient.

Internet law seminar this Friday in Chicago

This Friday (6/13/08) starting at 2pm at the Chicago Bar Association building [map], there will be an interesting 3-hour seminar titled “Management and Enforcement of Digital Rights on the Web.” The CBA’s Cyberlaw and Data Privacy Committee (which I’ll be chairing next year) is a co-sponsor of this event.

Topics include:

  • Trademarks online
  • Copyright online
  • Online terms and conditions
  • Conducting investigations online

Great faculty lined up:

The cost is $80 for CBA members and $140 for nonmembers.

Hope to see you there.

World IP Day coming up on April 26th, 2008

Saturday, April 26, 2008 marks the ninth annual World Intellectual Property Day. Begun in 2000 by the World Intellectual Property Organization, World IP Day aims to illustrate the benefits of and cultivate respect for IP. WIPO’s Director highlights this in a message noting that IP development and protection contributes to new technologies and an overall richer human experience for everything from the means to tackle global warming to watching the world wide broadcast of the Olympic games, and that IP nurtures human creativity, while fostering cultural, economic, and social development. From the telegraph to the Internet, IP increasingly connects the world.

Each country celebrates World IP Day in its own way, and a list of scheduled activities can be found here; a list of suggested activities such as concerts, essay-writing contests, and general awareness-building activities can be found here. A gallery of past and present artwork celebrating World IP Day is available here (this year’s poster here).