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NLRB’s Facebook firing decision had little to do with Facebook

Hispanics United of Buffalo, Case No. 3-CA-27872 (NLRB, September 2, 2011)

Folks are talking about the decision handed down by an Adminstrative Law Judge (ALJ) at the National Labor Relations Board (NLRB) last week, finding that a nonprofit employer violated federal law by terminating five employees over a Facebook status update and comments thereto. It is an inherently intriguing case because, as Eric Meyer points out, this is the first time the NLRB has actually issued a ruling that employees were wrongfully fired over Facebook content.

But if you read the decision [PDF], you will see that the NLRB’s decision does not turn on the fact that the communications among the terminated employees took place on Facebook. I am no expert in NLRB matters, but from what I can tell, the ALJ’s analysis is a straightforward look at whether the posting and comments were “concerted activity” which is protected by the National Labor Relations Act.

Here’s a skeletal outline of the analysis:

  • It is an unfair labor practice for employers to, among other things, restrain employees from engaging in “concerted activities for the purpose of . . . mutual aid or protection.”
  • “Concerted activities” are those engaged in with or on the authority of other employees, not solely by one employee alone, though a single employee’s activities to enlist the support of other employees is protected.
  • For there to be a violation, an empolyer must know that the activities were concerted.

In this case, the ALJ found that the terminated employees, by communicating on Facebook, were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [another employee] was going to make to management.” The termination prevented them from taking further group action, and the fact that they were fired as a batch tended to show that the employer knew the activity was concerted. So this was thus an unfair labor practice.

If anything, the fact that the communications were on Facebook — during non-work hours and on the employees’ own computers — fortified the claim that the termination was improper. An employer can argue that employee misconduct during the course of otherwise protected activity can be “so opprobrius as to lose protection.” Among the factors the NLRB is to consider in this “opprobriousness” test is the place of the discussion. The communications on Facebook, although maybe not good for the employer’s PR, were separate from work hours and facilities, so as to help disqualify them from being “misconduct.”

Lost sales were not “loss” under the Computer Fraud and Abuse Act

CustomGuide v. CareerBuilder, LLC, 2011 WL 3809768 (N.D.Ill. August 24, 2011)

Plaintiff and defendant had discussed a licensing arrangement whereby defendant would provide certain of plaintiff’s materials online. The parties never entered into that agreement. But plaintiff claimed that defendant went ahead and accessed the materials stored on plaintiff’s computer system, and thereby caused plaintiff to miss out on certain sales in the business to business marketplace for the materials.

So plaintiff sued, alleging a variety of claims, including a claim under the Computer Fraud and Abuse Act. Defendant moved to dismiss. The court granted the motion.

The CFAA defines a “loss” as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.” 18 U.S.C. § 1030(e)(11).

The court looked to the case of Cassetica Software v. Computer Sciences Corp., 2009 WL 1703015, (N.D.Ill. June 18, 2009) which explained that “[w]ith respect to ‘loss’ under the CFAA, other courts have uniformly found that economic costs unrelated to computer systems do not fall within the statutory definition of the term.” Rather, the purported loss “must relate to the investigation or repair of a computer system following a violation that caused impairment or unavailability of data.” For these reasons, the court in Cassetica Software held that lost revenues that were not related to the impairment of a computer system were not recoverable under the CFAA.

In this case, the court found that plaintiff did not allege any facts connecting its purported “loss” to an interruption of service of its computer systems. Instead, the complaint described an economic loss of revenues related plaintiff’s making business to business sales. Because such economic losses do not fall within the definition of “loss” under the CFAA, the court tossed the CFAA claim.

Court won’t let marijuana activist change his legal name to njweedman.com

In re Robert Edward Forchion, Jr., 2011 WL 3834929, (Cal.App. 2 Dist. August 31, 2011)

A long time marijuana activist (who now self-identifies as a “marijuana capitalist”) asked a California court to legally change his name to match the domain name of his website — njweedman.com. The court denied the request.

The court gave three reasons why it would not allow the name change:

  • A name change would last indefinitely, but a domain name could expire or be lost. Therafter, people might be confused.
  • The name change would associate the petitioner’s legal name with a website that advocates illegal activities, and that should not be allowed.
  • The petitioner tried to change his name in New Jersey back in 2001 but failed. The California court, looking to principles of “comity,” went along with the New Jersey Court.

At least we know Sunshine Megatron is not as controversial.

Facebook user had standing to challenge subpoena seeking his profile information

Mancuso v. Florida Metropolitan University, Inc., 2011 WL 310726 (S.D. Fla. January 28, 2011 )

Plaintiff sued his former employer seeking back overtime wages. In preparing its defense of the case, the employer sent supboenas to Facebook and Myspace seeking information about plaintiff’s use of those platforms. (The employer probably wanted to subtract the amount of time plaintiff spent messing around online from his claim of back pay.) Plaintiff moved to quash the subpoenas, claiming that his accounts contained confidential and privileged information. The court denied the motion as to these social networking accounts, but did so kind of on a technicality. The subpoenas were issued out of federal district courts in California, and since this court (in Florida) did not have jurisdiction over the issuance of those subpoenas, it had to deny the motion to quash.

But there was some interesting discussion that took place in getting to this analysis that is worth noting. Generally, a party does not have standing to challenge a subpoena served on a non-party, unless that party has a personal right or privilege with respect to the subject matter of the materials subpoenaed. The employer argued that plaintiff did not have standing to challenge the subpoenas in the first place.

The court disagreed, looking to the case of Crispin v. Christian Audiger, Inc. 717 F.Supp.2d 965 (C.D. Cal. 2010), in which that court explained:

[A]n individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and banking records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information.

This almost sounds like an individual has a privacy right in his or her social media information. But the p-word is absent from this analysis. So from this case we know there is a right to challenge subpoenas directed at intermediaries with information. We’re just not given much to go on as to why such a subpoena should be quashed.

Wikileaks, decentralized distribution, and the lack of meaningful remedies for unauthorized disclosure

Apart from the difficult question of liability — that is, whether Julian Assange should hang for his actions — the decentralized nature of the distribution methods of Wikileaks content gives us a meaningful opportunity to consider the remedies that should be imposed upon an actor like Wikileaks in those cases in which liability should attach. To do this we can set aside for the time being the more essential question of whether Wikileaks is good or bad. (I have come to think that question may be about as answerable as whether God exists or whether abortion is right.)

It is erroneous to think that Wikileaks should be less culpable merely because it does not have the capacity to be blocked. Wikileaks is not just a website with documents hosted on one server. More cleverly, Wikileaks made its content available via the Bittorrent protocol, which ensures that the information is as widely distributed as possible given today’s reasonably available technology. Attempts to completely block the content would be futile, because so many computers on the network that contain the distributed files (millions?) can work together to ensure that the content remains available.

By seeing to it that the content was available via Bittorrent, Wikileaks knowingly facilitated the decentralized distribution. To say that Wikileaks is not an evildoer because it is without power to undo the harm it caused is an exemplar of the principle behind the old saying that a defendant accused of killing his parents should not be shown leniency because he is now an orphan.

The real relevance of the decentralized distribution and unable-to-block-ness of Wikileaks lies in measuring the culpability for the original act of releasing the information. Here is the central thesis: to the extent generally available methods of information distribution like Bittorrent become further decentralized, the potential for that distribution to have effect becomes correspondingly greater.

Whether this correlation (i.e., greater effect potential in proportion to extent of decentralization) is good or bad depends on the nature of the information being distributed. Obviously, when the released information is harmful, the effect will be bad, and vice versa. A really, really decentralized release of information that, like Wikileaks content cannot be blocked, and which has a harmful effect from being disclosed, causes harm which truly is irreparable. Deleting, returning, or blocking further distribution of the information is impossible.

So what is to be done when harmful information is released in an ultra-distributed, unblockable way? Money damages will rarely do the trick. But what kind of equitable remedy will work? No type of injunction will have any effect in reducing the amount of information that has escaped into the wild, never to be redomesticated in even the slightest sense (since its perpetual propagation is assured through technologies like Bittorrent). How can we meaningfully deal with this problem uniquely occasioned by the digital age? What do you suggest?

Debt collector broke the law by using MySpace photo to intimidate consumer

Sohns v. Bramacint, 2010 WL 3926264 (D.Minn. October 1, 2010)

Plaintiff fell behind on her car payments. The lender turned the debt over to a collection agency that used technology and some remarkably poor judgment in an attempt to get paid.

The first bad decision was to use a caller-ID spoofer to make it look like the collection call was coming from plaintiff’s mother in law. The next not-smart use of technology was to access plaintiff’s MySpace page, learn that plaintiff had a daughter, and to use that fact to intimidate plaintiff. There was evidence in the record to suggest that the collection agency’s “investigator” said to plaintiff, after mentioning plaintiff’s “beautiful daughter,” something to the effect of “wouldn’t it be terrible if something happened to your kids while the sheriff’s department was taking you away?”

Plaintiff sued the debt collection agency under the Fair Debt Collection Practices Act. The FDCPA sets some restrictions on how debt collectors can go about their business. Plaintiff moved for summary judgment. The court granted the motion.

It held that the collection agency engaged in conduct the natural consequence of which was to harass, oppress, or abuse in connection with the collection of the debt; used false, deceptive, or misleading representations or means in connection with the collection of the debt; and used unfair or unconscionable means to collect or attempt to collect the debt.

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Vernor v. Autodesk: does it matter in an age of cloud computing?

Today the Ninth Circuit issued an opinion in the case of Vernor v. Autodesk [PDF], making an important ruling about copyright, software and the first sale doctrine. At a fundamental level, however, one could wonder whether the case is all that big a deal, since the first sale doctrine concerns rights that the owner of a physical copy of a work has. For software — especially these days when an increasing amount of software is either distributed over the internet or provided in the cloud — questions about the rights associated with physical copies are becoming increasingly irrelevant.

No doubt the distribution of physical copies of software is less important than it was in the past. But the Vernor case is worth looking at inasmuch as the ruling could translate into some potentially wacky arrangements depending on the desires of copyright owners and the accompanying restrictions they may put on the uses of their works. The holding of the case is not limited to software, but to any copyrighted work capable of being distributed in physical form. As Vernor’s attorney Greg Beck has written, “there is no obvious reason why other publishing industries couldn’t begin imposing the same terms. If they do, it may be the end of ownership of books and music.” (I’m proud to mention that Beck has been a guest blogger here at Internet Cases.)

What the case was about

Vernor bought several used copies of AutoCAD software from a customer of Autodesk, which is the software’s original distributor and copyright owner. Vernor then tried to sell those copies on eBay. Autodesk asserted that this sale of the copies violated Autodesk’s exclusive rights under the Copyright Act to distribute the software. So Vernor filed suit to ask the court to declare that such sales were not infringing. (Cases like these, where the accused goes on a preemptive offensive, are called declaratory judgment actions.)

The trial court found in Vernor’s favor. Autodesk sought review with the Ninth Circuit. On appeal, the court reversed, holding that Vernor could not rightly assert that his conduct was protected under copyright law’s first sale doctrine, and that Vernor’s customers’ installation of the software was not protected by the essential step defense.

These defenses failed because the court found that Vernor (and his customers) were merely licensees of the software, not owners.

The Software License Agreement

When Autodesk sold the software to CTA (the company from whom Vernor bought the discs before trying to sell them on eBay), it included a shrinkwrap license agreement, as well as a screen containing the same terms that appeared during the installation agreement.

The agreement provided, among other things, that the software was being provided under a limited license and that Autodesk retained ownership of the copyright in the software. It also placed onerous restrictions on the use and transfer of the software, e.g., the user could not rent, lease or transfer it to other users, or transfer it out of the Western Hemisphere, either physically or electronically.

The first sale doctrine

In general, the owner of a copyright in a work has the exclusive right to determine how copies of the work are distributed. The century-old first sale doctrine, however, is an exception to this general rule.

Under Section 109 of the Copyright Act (17 USC 109), the “owner of a particular copy” of a work may sell or dispose of his or her copy without the copyright owner’s authorization. Selling the copy of a painting you by at an art auction, for example, should not subject you to copyright infringement.

The essential step defense

The Copyright Act also provides that the owner of the copyright in a work has the exclusive right to make copies of the work. But there’s an exception to that exclusivity when it comes to software — the RAM copy made when the software is being used, according to Section 117 of the Copyright Act, cannot give rise to an infringement if that copying is being done by the “owner of a copy” of the software as an “essential step” in using the program.

The lower court’s decision

Vernor won at the lower court level because the court held that he was the “owner” of the copies of software he had bought, and therefore was protected by the first sale doctrine. His customers, also as owners, would be protected by the essential step defense.

Why these defenses failed

The court of appeals held otherwise, namely, that Vernor (as well as the company from whom he had bought the copies, and his customers) were merely licensees and not owners of the software. Only “owners” can claim protection under the first sale doctrine and the essential step defense.

The court looked to the circumstances surrounding the transfer of the software, and formulated the following test to determine that a software user is merely a licensee when the copyright owner: (1) specifies that the user is granted a license, (2) significantly restricts the user’s ability to transfer the software, and (3) imposes notable use restrictions.

In this case, all these criteria were met. Since neither Vernor nor the company he bought the software from were “owners,” these defenses were not available.

Room for criticism

The decision is subject to criticism in a number of ways. First, it might go against the sensibilities of many ordinary folks who think, quite naturally, that when you buy something (like a CD containing software), you own it. This case confirms that that is not always the case.

A second possible criticism is how the case makes possible some strange situations not involving software. What’s to stop hard copy book publishers from entering into shrinkwrap agreements with people who buy the books, purporting to retain ownership and calling the arrangement a license, while placing restrictions on use and transfer? Under the test in this case, it could be an infringement to lend or sell or otherwise distribute that book. Seems like a dangerous way to lock up information. But I guess it’s better than including curses as DRM.

Finally, the case lends itself to criticism in the way it gives great power to the software companies to really tie up tangible media to the detriment of consumers. Once an application has been sold once, where’s the harm to the software company if it’s transferred to someone else? The company has already been paid once, why must it insist on getting paid again? This grabbiness is really no surprise, though, especially when one sees that the likes of the Business Software Alliance joined as amici on the side of Autodesk.

In any event, tangible media for software is becoming a thing of the past. To the extent this case allows some negative consequences, the move to the cloud will mitigate that negativity.

Can a robot perform a valid marriage ceremony?

Mashable has this little story and video of a couple in Japan getting married in a ceremony performed by a robot. Looks like it went off without a hitch. But it’s an interesting harbinger of some of the legal questions that will arise as intelligence based on nonbiological substrates gets more human-like.

Is a marriage ceremony performed by a robot “legal”?

I looked up the Illinois statute that provides the requirements for a marriage ceremony (750 ILCS 5/209). A couple can get married if the marriage is “solemnized” by a judge, a county clerk, or “in accordance with the prescriptions of any religious denomination, Indian Nation or Tribe or Native Group, provided that when such prescriptions require an officiant, the officiant be in good standing with his religious denomination, Indian Nation or Tribe or Native Group.”

I expected the statute to be phrased in a way that would at least strongly imply that the ceremony has to be solemnized by a person. But I’m not sure it’s totally clear. I’m not a family lawyer — so take this with a grain of salt. It looks like a couple can still be validly married in a religious ceremony if the “prescriptions” of that religion do not require an officiant.

So it may not be too hard to work around the robot problem. Just find a church out there to establish some prescriptions that don’t make the officiant an essential part. Then the robot ceremony could ostensibly be a side show, like the cutting of the cake or tossing of the bouquet.

If you think about it, does it really matter whether the officiant is a person? There remains the obligation to get a license, which serves as a vetting process of sorts for the couple. And the psychological effect of “solemnization” is to get the couple to take it seriously. Does anyone care whether the officiant is conscious of what’s going on in the same way a human would?

Video: This Week in Law Episode 56

Recording today’s episode of This Week in Law was super fun. I enjoyed the conversation with Denise Howell, Carolyn Wright and Merlin Mann. Neato discussion about copyright, Twitter, Creative Commons and other awesome stuff. And you can even hear Denise rap at about the 47 minute mark. Here’s the video:

Watch past episodes of TWiL over at http://twil.blip.tv.