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

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.

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

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.

How will defend itself in the recent assault lawsuit?

Techdirt reports that a Texas teenager and her mother have sued, claiming that it failed to protect the teenager from an alleged predator she met online who assaulted her. It will be interesting to see if and how MySpace might try to use Section 230 of the Communicaitons Decency Act, 47 USC §230, in its defense.

The closest precedent we have to look at is a case called Doe v. America Online, Inc., 783 So.2d 1010 (Fla. 2001). In that case, the Supreme Court of Florida held that 47 U.S.C. §230 preempted a mother’s negligence suit against AOL arising from the illegal conduct of an AOL subscriber. The mother alleged that AOL negligently failed to terminate the account of a subscriber who used a chat room to promote the sale of obscene photographs and videos of the mother’s minor son.

Adopting the Fourth Circuit’s reasoning in Zeran v. America Online, Inc., the court held that finding AOL negligent for its failure to police the conduct of chat room participants would be to treat AOL as a publisher of the complained of conduct. Such treatment would be at odds with the provisions of Section 230, and thus the negligence action was preempted.

In the Doe v. AOL case, the alleged illegal conduct took place online. In the case, the alleged illegal conduct arose from an online meeting, but actually took place offline. Will that difference affect the viability of a Section 230 defense?

No COPA cause of action for DaVinci Code documentary

Pro se plaintiff Walter Viola didn’t care too much for The History Channel’s “Beyond the Da Vinci Code” which aired in December 2005. He disliked it so much that he filed a federal lawsuit against A&E Networks, claiming that it had defamed the Catholic church, and that Internet content promoting the show violated both Section 223 of the Communications Decency Act and the Children’s Online Protection Act, 47 U.S.C. §231.

The court easily dismissed Viola’s suit. Judge McVerry of the U.S. District Court for the Western District of Pennsylvania, in adopting the Report and Recommendation of Magistrate Hay, held that neither the CDA nor COPA provide for a private cause of action. “[T]he authority to enforce the CDA lies with the proper government authorities and not with a private citizen such as plaintiff.”

Viola v. A&E Televison Networks, — F.Supp.2d —-, 2006 WL 1549703 (W.D. Pa., June 7, 2006).

Blog Law & Blogging for Lawyers Seminar

I am quite honored to have been asked to speak at next week’s Blog Law & Blogging for Lawyers Seminar at the Pan Pacific Hotel in San Francisco. I will be speaking at 10:30 a.m. on Thursday, April 20, 2006 on defamation liability for bloggers and blog commenters. How humbling it will be to share the stage with Professor Raymond Nimmer, who will discuss intellectual property ownership issues relating to blogging.

The two-day seminar will feature appearences from a number of true law-and-technology luminaries, among them Kurt Opsahl, Lauren Gelman, Mia Garlick, and Denise Howell. My friend Dennis Crouch of the Patently-O blog is a co-chair of the seminar, and I thank him for the opportunity to be a part of this very interesting event.

If you’re a reader of and you plan on being there, be sure to say hello.

Court predicts Internet will overtake Yellow Pages as top advertising medium

“Information superhighway” may one day surpass the preeminence of the phone book.

When it printed an edition of the Evansville, Indiana Metropolitan Area Yellow Pages, Ameritech Publishing accidentally left out Robert Pigman’s name from his law firm’s ad. Pigman filed suit against Ameritech, seeking damages from the business he lost due to the omission. Ameritech moved for summary judgment.

Citing to an “exculpatory clause” in the advertising contract, which limited Ameritech’s liability to the price Pigman’s firm paid for the ad, the trial court granted Ameritech’s motion. Pigman appealed, asserting that the exculpatory clause was unconscionable and void as against public policy.

The appellate court agreed with Pigman and reinstated his lawsuit against Ameritech. Applying “greater judicial scrutiny” because of the nexus between Yellow Pages advertising and the regulated public telephone service, the court held that the advertising contract was a “contract of adhesion.”

Because of the overwhelming pervasiveness of the Yellow Pages, Pigman had been left with no other meaningful choice but to accept the unreasonable limitation of liability clause. The clause was, after all, nothing more than an illusory promise, since it only required Ameritech to return money it hadn’t actually earned.

The most interesting part of the opinion, however, comes at footnote 6, where, in discussing the great importance of Yellow Pages advertising, the court takes a moment to prophesy about the future of the Internet as a medium of commerce:

We observe that sometime in the not very distant future, when every home and business is online, people may do their shopping for goods and services through the Internet. When that occurs, the printed Yellow Pages directory will no longer enjoy the unique market penetration which it does today. Then, the print medium will be preempted by the information superhighway, and the printed Yellow Pages will no longer enjoy preeminence. Today, when an error is made, the error persists for a full year until the next edition is published. When the Yellow Pages is on the Internet, errors in advertising copy will be corrected with a few keystrokes, and such instant mitigation may well obviate a claim for damages of the kind presented in this case.

Are we there yet?

Pigman v. Ameritech Publishing, Inc., 641 N.E.2d 1026 (Ct. App. Ind. 1994).

Court okays unjust enrichment claim in content scraping case

Plaintiff ShopLocal sued defendant Cairo, its competitor in the online advertising industry. ShopLocal accused Cairo of unauthorized use of a content scraper, whereby Cairo accessed and republished advertisements created by ShopLocal. [Read about other litigation involving Cairo.]

In addition to claims under the Computer Fraud and Abuse Act [18 U.S.C. 1030 et seq.] and for common law trespass to chattel, ShopLocal asserted claims for breach of contract and unjust enrichment. Cairo moved to dismiss the unjust enrichment claim, asserting that ShopLocal should not be permitted to recover for both breach of contract and unjust enrichment in the same action. Because ShopLocal had not pled unjust enrichment as an alternative cause of action, Cairo argued, ShopLocal had failed to allege a claim upon which relief could be granted.

The U.S. District Court for the Northern District of Illinois rejected Cairo’s argument, and denied the motion to dismiss. The court held that under Illinois law, an unjust enrichment claim may be predicated on either a contract or tort theory. Because ShopLocal’s unjust enrichment claim was based in tort, it could stand alone without being pled in the alternative.

ShopLocal LLC v. Cairo, Inc., (Slip. Op.) 2006 WL 495942 (N.D. Ill., February 27, 2006).

Does FON have some legal hangups?

There was some buzz this past week with the announcement that Skype and Google have both put their support behind the startup known as FON. Simply stated, FON provides the means for broadband subscribers to share their Internet connections with others through wi-fi hotspots. It’s a good idea in principle, but as this article from points out, the endeavor is not without its potential legal obstacles.

As the article observes, FON is cavalierly moving forward even though many broadband users’ agreements with their ISPs prohibit the sharing of accounts. Aside from these contract issues, some other possible questions concerning individual liability for FON users remain.

For example, what if a user sharing a connection distributed infringing content through that connection? Would the primary subscriber be considered an online “service provider” as that term is used in the safe harbor provisions of Section 512 of the Digital Millennium Copyright Act? Perhaps, but that’s probably not what members of Congress had in mind nearly a decade ago when they drafted the DMCA.

What about liability for making defamatory statements through a shared connection? Would the primary subscriber be immune from liability as a publisher under Section 230 of the Communications Decency Act? Once again, although there’s a good chance that the subscriber would find immunity under statute, the situation is quite different than that contemplated by the drafters of the legislation being applied. [More on Section 230 immunity]

Finally, what about distribution of obscene or illegal content? The average Internet user might be a bit uneasy about his or her IP address being associated with illegal pornography or the “chatter” of terrorists.

FON’s FAQ page states unambiguously that users would not be responsible for “illicit” activities of others conducted through a shared Internet connection. Perhaps that’s true, but a wise consumer should question whether the answer is as clear as FON would like it to be.


Ten intriguing Internet cases from 2005

The end of the year is quickly approaching, and in the spirit of retrospective reflection that accompanies the season, I have compiled this list of intriguing court decisions relating to the Internet handed down during 2005. It’s not a compilation of cases that are necessarily important to the overall development of this area of law (for example MGM v. Grokster is not on the list), but is merely a list of cases that have either off-the-wall facts or surprising/provocative outcomes. Think of the list both as a way to look back on the year, and as a little holiday gift to the loyal readers of this weblog (a group now measured in the several hundreds – thanks for your support!)

The comments for this post are open, so I invite you to note other Internet-related decisions you’ve found notable during the past year which I have not put on this list.

1. O’Brien v. O’Brien, 899 So.2d 1133 (Fla.App., Feb. 11, 2005)

Evidence obtained through use of spyware not admissible

2. Central New York Workers’ Comp. Bar Assn. v. New York Workers’ Compensation Bd., 16 A.D.3d 1066 (App.Div., March 18, 2005)

Internet access to only one party during trial provides unfair advantage

3. Vogel v. Felice, 127 Cal.App.4th 1006 (Cal.App. 6th Dist., March 24, 2005)

“Dumb Ass” is not a defamatory term

4. Liebert Corp. v. Mazur, 827 N.E.2d 909 (Ill.App. 1st Dist., April 5, 2005)

Password protection is not enough to protect trade secrets

5. State v Velardi, 612 S.E.2d 447 (N.C.App., April 5, 2005)

Court upholds admissibility of weblog evidencae used to convict

6. People v. Earle, (Not Reported in N.W.2d), 2005 WL 1224611 (Mich.App., May 24, 2005)

Escort’s website relevant evidence for truthfulness

7. Munster v. Groce, 829 N.E.2d 52, at n. 3 (Ind.App., June 8, 2005)

Even the courts know the Internet is the first place to turn for information

8. Freedman v. America Online, 2005 WL 1899381 (D.Conn., August 9, 2005)

No reasonable expectation of privacy in Internet subscriber information

9. Doe v. Cahill, 884 A.2d 451 (Del., October 5, 2005)

Delaware decision defines standards for protecting anonymous Internet speech

10. Commonwealth v. [___________], — A.2d —, 2005 WL 3196556 (Pa.Super., November 30, 2005)

Criminal record expunged for school librarian arrested for selling discarded copies of National Geographic on eBay