Category Archives: Miscellaneous

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


Pennsylvania court ensures that good deed goes unpunished

Record expunged for librarian arrested after selling back copies of National Geographic to buy school computers.

Defendant (whose name I’m withholding in this entry in the event anyone does an Internet search for his name someday), a 24-year-old school librarian, rescued some of his library’s back issues of National Geographic from the trash can and sold them on eBay. He used the proceeds from the sale, along with $300 of his own money, to buy six computers for the school. Despite these generous and creative efforts, the school system complained to the district attorney’s office, and defendant was arrested for library theft.

In return for defendant resigning his position as librarian, the district attorney’s office withdrew the charges. Defendant then filed a motion to have the record of his arrest expunged. After the trial court denied the motion, defendant sought review. On appeal, the court held that the trial court applied the wrong burden of proof on the question of expungement, and that the prosecution failed to show why the arrest record should not be expunged.

The appellate court applied the four factors set out in the Pennsylvania Supreme Court case of Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), to determine that the trial court abused its discretion in not ordering the arrest record expunged. The court commented on defendant’s motives: “Although perhaps hasty and not ‘cleared’ sufficiently through the proper channels, we believe [defendant’s] actions demonstrate the creativity and altruism so vital to our public schools.”

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

Court tosses author’s suit against over negative book reviews

Plaintiff Hammer, a self-published author of books on handwriting analysis and hypnosis, sued, 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 or Amazon’s refusal to do business with him.

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

Harriet Miers on the law and technology

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., Inc. 2005 WL 2095770 (N.D. Tex., August 30, 2005) – Defendants, 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.

Data on school computers not automatically subject to inspection under Tennessee Public Records Act

Plaintiff-appellant Brennan filed suit against the Giles County Board of Education after it refused his request under Tennessee’s Public Records Act to inspect data on certain computers owned by the school system. Brennan’s request included all e-mail sent and received with the computers, as well as all websites visited with them.

The lower court held an in camera review of the requested information and concluded that the Act did not require it be made available for public inspection. Brennan sought review in the Tennessee Court of Appeals, which affirmed the lower court’s decision.

Brennan had asked the court to develop a per se rule under the Public Records Act which would automatically render data stored on school-owned computers subject to public inspection. The court declined to draw such a bright line, holding that the legislature did not intend for all such records to be subject to “public perusal.”

The court relied heavily on the Florida case of Times Publishing Co. v. City of Clearwater, 830 So.2d 844 (Fla.App.2002), which interpreted Florida’s nearly-identical statute on the issue. The court held that the language of the Tennessee statute, which provides for inspection of documents “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency,” precludes inspection of private or personal communications.

Instead of developing a per se rule for the conditions under which documents on school-owned computers become subject to inspection, the court held that such matters should be reviewed on a case-by-case basis. Accordingly, the lower court was correct in conducting the in camera review.

Brennan v. Giles County Bd. of Education, 2005 WL 1996625 (Tenn.Ct.App., August 18, 2005).

Google and the reasonable person

You may recall a posting on this site from a few weeks ago about an Indiana court that concluded a plaintiff who hadn’t consulted the Internet failed to exercise due diligence in locating a defendant for service of process. A court in West Virginia has taken the centrality of Google in everyday life one step further. The judge in the case of Plemons v. Gale, 2005 WL 1798335, (S.D.W.Va., Jul 27, 2005) equates doing a Google search with the “reasonable person standard.” Here’s an extensive quote from the case:

“In the ‘time, place, and circumstances’ of this case, one who actually wanted to inform Ms. Plemons that her house was to be conveyed because of a failure to pay roughly $3,000 in taxes and fees would not have looked for her in the dusty corners of the Kanawha County record room. In the age of telephones, internet search engines, online newspapers, online people-finders, and readily available credit reports, most people can easily find someone. Thus, if a reasonable person were charged with the duty of locating Ms. Plemons in the relatively small city of Charleston, West Virginia, it is my belief that he would be likely to employ ‘Google’ to find her name, call information to learn her telephone number, contact her lending bank, or call her ex-husband. Instead, Advantage searched the public records for Ms. Plemons’ address and mailed written notices to two of the addresses contained therein. When the notices were found to be undeliverable, Advantage did nothing further. I continue to believe that those efforts failed to meet the constitutional standards of due process.” [Emphasis added.]

If the CIA cares about the environment, it apparently doesn’t want you to know about it

Court holds that CIA violated provision of Energy Policy Act, ordering publication of information regarding acquisition of alternative fuel vehicles.

The Energy Policy Act of 1992, 42 U.S.C. §13211 et seq., requires federal agencies to purchase a minimum number of alternative fuel vehicles (“AFVs”) when adding to their fleets of automobiles. To ensure compliance with this environmentally-friendly requirement, 42 U.S.C. §13218 calls for federal agencies to prepare annual reports to Congress summarizing their compliance with the AFV purchasing requirements. These annual reports must be posted “on a publicly available website on the Internet.” 42 U.S.C. 13218(b)(3).

For the past six years, the CIA has apparently been too busy with the war on terror and other pressing matters to concern itself with the reporting requirements of the Energy Policy Act. Certain environmental groups noticed this, and filed suit in federal court in California, claiming that the agency (and 12 other agencies as well) had failed to properly make the AFV compliance information available online.

The plaintiffs filed a motion for summary judgment, claiming that there was no genuine issue of material fact regarding the failure of the various agencies to meet the reporting requirements. Although the court denied the motion as to the other 12 agencies (their reporting was at least somewhat sufficient), the court found that the CIA “essentially conceded that it failed to prepare or publish any compliance reports required under the [Energy Policy] Act.”

Accordingly, the court held that the CIA had not met its reporting obligations under the Act, and ordered it to publish on the Internet no later than January 31, 2006 information regarding its acquisition of AFVs during the past six years.

Center for Biological Diversity v. U.S. Dept. of Energy et al., 2005 WL 1656881 (N.D. Cal., July 14, 2005).

Blawg Review #10

[What is Blawg Review?]

There has been a lot of interesting legal news this past week, and the members of the blogosphere have been there to report and comment. Let’s get right to it.

For convenience, you can click on any of the links below to take you directly to discussion of that topic:

Legal ethics
Patent reform
Copyright reform
Tort reform
Medical marijuana
The practice of law
Employment law
Attorney fees
Blogging basics
First Amendment
File sharing litigation


Free Ben Cowgill

. . . as Robert Ambrogi so aptly encourages in light of this controversy.

Loyal readers of Ben Cowgill’s Legal Ethics Blog might have noticed that he didn’t post much druing the month of May. On June 7th we learned the reason for the absence through Ben’s “I’m Back” posting. As Ben explains, a question raised by the Kentucky Attorney’s Adversiting Commission is whether an attorney’s weblog constitutes advertising. If it does, Kentucky blawggers would be required to submit to the Commission a copy of each blog posting and pay a $50 filing fee. After Ben announced the controversy, lively debate ensued. Here’s a wrap up of links to various commentators:

Kentucky says every blawg post is an ad (David Giacalone)

Blogging as Advertising? (Professor Bainbridge)

prof. bainbridge should concur, not dissent over ads (David Giacalone again)

KY Lawyers Welcome Here (Evan Schaeffer’s Legal Underground)

Blawgers As Advertisers? No More So Than The Kentucky Bar Association. (Craig Williams at May it Please the Court)

Ben Cowgill posted an update on his situation on June 10, which provides links to many other informative commentary on this subject.

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Patent Reform

Looks like the times they are a-changin’. Lots of folks talking about reform (e.g., copyright reform, tort reform, below). Dennis Crouch at the Patently-O: Patent Law Blog has this rundown of some important patent legislation introduced in the House on June 8. For more on patent reform, be sure to visit Matt Buchanan’s Patent Reform Library.

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Copyright Reform

Denise Howell of Bag and Baggage and Between Lawyers, has likened the present state of copyright law to an “aging house” with “infrastructure and plumbing [that] have reached the end of their useful lives.” With word pictures like that, you can imagine there’s some interesting discusison. Links on the topic are aggregated here.

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Tort Reform

Clay Conrad at jurygeek has developed a thesis that tort reformers want to eliminate the civil jury system. See if you agree by checking out
Tort Reform or Jury Elimination Part I and Part II.

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No More High Hopes for Medical Marijuana

Naturally there was plenty of talk this week of the Supreme Court’s decision in Gonzales v. Raich which essentially stikes down the states’ ability to permit the medical use of marijuana. Where else would one turn for commentary but the SCOTUSblog? As you’d expect, it’s hard to find postings there from the past week that do not deal with the case.

Indianapolis lawyer Stephen Terrell, who writes the new and witty Hoosier Lawyer blog, comments on an interesting choice of words by one Congressman in light of the Raich decision.

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Law Practice Management

E-mail for the simplest things

Respected for his experience, judgment, and wisdom, Ernie the Attorney provides a simple and useful account of using technology to run an efficient law practice.

Little firm, big firm

Marketing expert Seth Godin recently touted the virtues and benefits of the smaller-sized enterprise, and its ability to serve its clientele.

The Patent Baristas have an insightful analysis and critique of Godin’s proposition, and bring it into the law firm context, defending the big firm perspective. Kevin O’Keefe joins the debate on the side of the small firm.

Well-caffeinated lawyering

George Lenard reports that while engaging in his new pastime of viewing photos posted to Flickr (some of which, by the way, he says he uses for his blawg if under Creative Commons license permitting such use), he discovered an intriguing concept for a law office. Read his post to find out what it’s all about.

Electronic Discovery

Evan Schaeffer at The Illinois Trial Practice Weblog remarks how amazing it is that information as useful as Dennis Kennedy’s recent article on electronic discovery is available for free over the Internet. Dennis Kennedy has a whole lot more about electronic discovery here.

A Lawyer’s Life (and the Quality Thereof)

The Dark Goddess of Replevin points us to this attorney work/life balance calculator. If you think you hate your job now, just wait until you’ve tried this.

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You’ve Got to be Careful at Work

Your Life or Your Job — Literally

David Kopel writing at The Volokh Conspiracy discusses a wacky recent case where a 7-11 employee had been fired for acting in self-defense against a store robber.

Employment Agencies and Discrimination

Michael Harris, one of the co-bloggers at George’s Employment Blawg discusses a press release from the New York State Attorney General’s Office to formulate the warning Employment Agencies Beware! Discrimination Laws Apply To You, Too

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Getting the Scoop

Richard Radcliffe, an attorney in Newport Beach, California, writes lawreligionculturereview, and in this post, he has an interesting first-hand account of proceedings in which a court really hammered Home Depot on the issue of attorney fees.

Radcliffe’s weblog is an interesting read. Be sure to check out this post on the horror of receiving one’s bar exam results.

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The Dark Goddess of Replevin strikes again and mulls over the evidentiary issues surrounding the “creepy” weblog entry of Simon Ng before his murder last month.

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Back to Basics

It’s 2005, but you still probably get the question, “What’s a blog?” Al Nye the Lawyer Guy gives us a link to an article he wrote for the Spring 2005 Maine Law Journal that lays it all out from A to Z. It’s a bit of work getting to the article (you’ve got to download a PDF file and scroll to page 39), but it’s worth the effort. And the Star Wars theme to the article makes it even easier to bring others over to the dark side of blogging. The article even has a glossary that defines “podcast.”

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Podcasting Lawyers

Speaking of podcasts, does anyone have an answer yet to the question of “Where have all the podcasts gone?” The boys over at rethink(ip) have chimed in with the rethink(ip) aloud podcast #4, an interview with The Invent Blog’s Stephen Nipper.

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Utah and Porn

. . . are not two subjects you often think of together, but those concepts are joined in the lawsuit reported on by Professor Eric Goldman, as he takes a look at how the ACLU is “leading a charge against Utah for their latest anti-porn initiative.”

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While We’re Waiting for Grokster

Professor Michael Geist examines the recent Canadian Federal Court of Appeal’s decision involving the recording industry’s attempt to identify 29 alleged file sharers.

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Trademark Law and the Philosophy of Language

If you ever find yourself interested in the doings of the Trademark Trial and Appeal Board, be sure to visit John Welch’s TTABlog. His case summaries are frequent and pithy, and his blog is inherently interesting due to the very particular niche on which it focuses. And speaking of inherent meanings, Welch goes off topic a bit this week with a clever little riddle which will elicit groans from many and laughter from those with a dry sense of humor.

While on the topic of niche blogs, attorney Patrick Jones maintains the UDRPLaw blog which tracks decisions over domain names under the Uniform Domain Name Dispute Resolution Policy. This past week, Patrick discusses how the clothing store American Eagle Outfitters lost a proceeding over the domain name

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Perspectives on Reparations

Large banks like Wachovia and J.P. Morgan Chase, which in many cases have rolled together the business of hundreds of smaller banks across the country, have been issuing public apologies for their predecessor institutions’ involvement with slavery.

At Overlawyered, Ted Frank and correspondent John Steele Gordon are critical of the trend, while editor Walter Olson wonders whether momentum is building for courtroom challenges to Southern land titles that could result in unprecedented legal battles. Their three posts at Overlawyered on the topic are here, here and here.

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And That’s the Way it is

. . . for the “blawgosphere” during the week of June 6, 2005.

This week, Bora Zivkovic of Science And Politics has a guest post on the Blawg Review weblog.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

New York tax ruling could discourage telecommuting

The Court of Appeals of New York has held that a computer programmer who was an employee of a New York company and worked from his home in Tennessee 75% of the time was delinquent in paying his New York state income tax by allocating only 25% of his income in calculating the amounts due. The court upheld the constitutionality of the “convenience of the employer” test, which provides that when a nonresident is employed by a New York employer, income derived from work in another state is taxable by New York unless performed out of state for the necessity of the employer.

Huckaby v. New York State Div. of Tax Appeals, 2005 WL 705977 (Ct.App. N.Y. March 29, 2005).