This edition of the InternetCases.com podcast discusses the question of when the federal CAN-SPAM Act preempts state law.
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Microsoft has announced that the name of its new operating system coming out next year will be called “Vista.” As of the date of this posting, a search of the records of the United States Patent and Trademark Office reveals no applications on file for the mark VISTA owned by Microsoft. Is this an oversight or merely a consequence of the several day backlog for getting information about new applications online? Perhaps it’s just a load date issue.
Plaintiff Whitney Information Network sued various defendants that publish websites which purport to provide consumers with an outlet to report dishonest companies. Whitney claimed it had been harmed from the defendants’ reckless publication of false stories about its business. It alleged various causes of action against the defendants, including defamation per se of business reputation.
The defendants moved to dismiss the defamation claim, arguing that Section 230(c)(1) of the Communications Decency Act shielded them from liability for defamation. That portion of the act provides 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.”
The court found that the defendants did not write the messages that appeared on their websites. Instead, visitors to the website submitted the information. Accordingly, the court dismissed the defamation claim, holding that the “Defendants are a service provider as they publish information by consumers on their website.”
Whitney Information Network, Inc. v. Xcentric Ventures, LLC, 2005 WL 1677256 (M.D.Fla., Jul 14, 2005).
John Roberts, President Bush’s nominee for the Supreme Court has only been on the bench since 2003, when he was appointed to the U.S. Court of Appeals for the District of Columbia Circuit. In that time, it does not appear that Judge Roberts authored any opinions dealing squarely with what most would consider “Internet law.”
Roberts was on the panel of judges (but not the author of the opinion) in the case of Recording Indus. Assn. of America, Inc. v. Verizon, 351 F.3d 1229 (D.C.Cir., 2003), which garnered a significant amount of attention upon its pronouncement. In that case, the Court of Appeals reversed the decision of the district court which had denied Verizon’s motion to quash subpoenas issued by the RIAA. The RIAA had issued such subpoenas pursuant to the Digital Millenium Copyright Act (“DMCA”), seeking to learn the identity of accused file sharers.
The court held that under the DMCA, a subpoena could issue only to Internet service providers that actually stored infringing material on their servers. Because Verizon was acting as a mere “conduit” for data transferred between Internet users, the subpoenas should not have issued.
Of course, the Grokster opinion has changed the overall landscape of potential liability for copyright infringement over peer-to-peer networks. The author of this weblog will defer to more knowledgeable sources rather than speculate on how a Supreme Court Justice Roberts would rule on such a matter.
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).
Chris Heather, a member of Ohio’s Northwest Local School District Board of Education, wrote a newspaper column criticizing past actions of the board, calling on the public to support two non-incumbents in the next election. Bill Lambert, another member of the board, wrote an email to two other school board members discussing factual inaccuracies in Heather’s letter and suggesting that the other members draft a response.
Plaintiff Haverkos, who as the court noted “seem[ed] to have a long history of opposition to the school board,” filed suit against the board alleging that the email communication and subsequent actions by the members of the board violated Ohio’s “Sunshine Law,” R.C. 121.22 et seq. That law requires, among other things, that public officials conduct all deliberations on official business only in open meetings.
The trial court had held that sending the email was a violation of the Sunshine Law, and had awarded summary judgment in Plaintiff Haverkos’s favor. At issue on appeal was whether the email could be considered a “discussion” under the Sunshine Law and thus subject to the law’s provisions. The appellate court reversed the trial court, holding that Ohio’s Sunshine Law does not cover email communications. Furthermore, the subject of the email was limited to election politics, not official school board business.
Haverkos v. Northwest Local Sch. Dist. Bd. of Educ., 2005 Ohio App. LEXIS 3237 (Ct. App. Ohio, July 8, 2005).
Plaintiff Gordon sued defendant Impulse Marketing, an apparent source of unwanted email. Gordon brought the lawsuit in federal court, but alleged violations of the state of Washington’s Commercial Electronic Mail Statute, RCW §19.190 et seq. and Washington’s Consumer Protection Act, RCW §19.86 et seq.
Impulse moved to dismiss, arguing that the federal CAN-SPAM Act, 15 U.S.C. §7701 et seq., preempted the state statutes under which Gordon had brought the suit. The court rejected Impulse’s argument and denied the motion.
By its own terms, the CAN-SPAM Act “supersedes” any state law that “expressly regulates the use of email to send commercial messages.” 15 U.S.C. §7707(b)(1). That same provision, however, states that the Act does not supersede state laws to the extent that those laws “prohibit falsity or deception” in an email message or its attachments.
The court looked at the prohibitions of the Washington statutes and concluded that the plain language of the CAN-SPAM Act did not support Impulse’s preemption argument. The state Commercial Electronic Mail Statute prohibits “misrepresentation” and the use of “false or misleading information” in the course of sending email messages. The state Consumer Protection Act makes it illegal to send an email message with “false or misleading information in the subject line.” Accordingly, the CAN-SPAM Act did not preempt these provisions, as they serve to prohibit “falsity or deception.”
Gordon v. Impulse Marketing Group, Inc., 2005 WL 1619847 (E.D. Wash., July 11, 2005).
This edition of the InternetCases.com podcast discusses the dangers of posting copyrighted images online without obtaining permission.
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The U.S. District Court for the Northern District of California has entered judgment in excess of $175,000 against a defendant accused of copyright infringement and unauthorized commercial use of photographs on the Internet.
Without authorization, defendant Adkins copied and posted over 100 of plaintiff IO Group’s copyrighted images. IO filed suit against Adkins in federal court, alleging violation of the Copyright Act (17 U.S.C. §101 et seq.) and unauthorized commercial use of the photographs in violation of California Civil Code §3344. IO had registered the copyrights in each of the images. It had also obtained releases from each of the models appearing in the photographs, whereby IO became the “exclusive proprietor of the models’ rights of publicity in the photographs.”
Adkins never responded to the summons, and the court entered judgment by default. The court determined that IO had alleged sufficient facts to state claims for copyright infringement and unauthorized commercial use of the photographs.
In awarding damages, the court found that IO was entitled to $1,000 per image as statutory damages for copyright infringement. See, 17 U.S.C. 504(c)(1). The court determined that such an amount was proper given the fact that over 100 images were involved, and that IO had previously taken steps to maintain the value of the photographs by limiting their distribution.
The court awarded $750 per image as damages for violation of California Civil Code §3344(a). It noted that such an award was not duplicative of an award of damages under the Copyright Act, as this portion of the case related to the models’ rights of publicity, not the unauthorized copying of the images. Earlier in the opinion, the court had noted the holding of Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001), which states that “[a] person’s name or likeness is not a work of authorship within the meaning of [the Copyright Act].”
IO Group, Inc. v. Adkins, 2005 WL 1492381 (N.D. Cal., June 23, 2005).
Nearly everyone is talking about the Grokster decision which was handed down by the U.S. Supreme Court this morning. For an excellent and thorough analysis, read Professor Eric Goldman’s posting.