Web content producer awarded hefty amount for unauthorized use of photographs

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).

Court rejects constitutional argument in Microsoft trade secret prosecution

New York federal court holds that Economic Espionage Act of 1996 not unconstitutionally overbroad or vague.

In February 2004, defendant Genovese posted a message on his website that the source code for Windows 2000 had been “jacked,” and offered to provide copies of it via FTP to anyone willing to pay a small fee. After Microsoft investigated Genovese’s claims and successfully obtained one of the “jacked” copies, it notified the FBI. Genovese was arrested and charged under the federal Economic Espionage Act of 1996, 18 U.S.C. §1832 et seq. (“EEA”).

Genovese moved to dismiss the indictment, arguing that the EEA was facially overbroad and unconstitutionally vague as applied to him. The court rejected his arguments, and denied the motion to dismiss the indictment.

In holding that the statute was not overbroad, the court determined that Genovese’s alleged conduct, namely, distributing the source code “with intent to convert a trade secret…to the economic benefit of anyone other than the owner thereof” was not protected speech under the First Amendment.

On the question of whether the statute was unconstitutionally vague, the court concluded that the term “trade secret” was defined with “sufficient definiteness” so that an ordinary person in Genovese’s position would understand that trafficking in the Windows source code was prohibited by law. Genovese’s own conduct demonstrated that he knew the source code derived value from not being generally known (namely, by referring to it as “jacked” and by charging a fee for access to it.) Furthermore, the court found that one could infer Genovese knew the code was proprietary and that protective measures taken by Microsoft had been circumvented. Thus, Genovese could “reasonably understand” that his conduct was proscribed by the Act.

U.S. v. Genovese, 2005 WL 1439860 (S.D.N.Y., June 21, 2005).

UPDATE: Genovese pleads guilty. [More here.]

Pennsylvania court addresses authentication of instant messages

(This was a juvenile delinquency proceeding, thus the names of the parties involved are abbreviated with initials.)

F.P. suspected that Z.G. had stolen a DVD from him. One day in September 2003, as Z.G. was getting off the school bus, F.P. approached Z.G. and “struck him numerous times about the head and face.” F.P. was adjudicated a delinquent, and sought review.

On appeal, F.P. challenged the introduction of printed transcripts of instant messages purportedly sent back and forth between F.P. and Z.G. before the attack. In these messages, the boys discussed the alleged theft of the DVD, and F.P. threatened Z.G. with violence.

F.P. argued that in order for the instant messages to have been admitted into evidence, the prosecution should have introduced information regarding their source with an ISP, or testimony from a computer forensics expert. The “inherent unreliability” of e-mail and instant messaging communications, F.P. argued, made the authentication of the documents through circumstantial evidence improper.

The court rejected F.P.’s arguments, and held that the trial court did not abuse its discretion in admitting the communications. It found that there was sufficient evidence to support the conclusion that F.P. had sent them. In the messages, F.P. had referred to himself by his first name. He accused Z.G. of stealing from him, which mirrored other testimony in the case. Furthermore, he referenced the fact that Z.G. had involved school authorities regarding the dispute between the two, which is a fact that few others would have known.

The court concluded that the applicable Pennsylvania rule of evidence (901) provided a sufficient framework for the analysis. The court held that there “was no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.”

In the Interest of F.P., — A.2d —, 2005 WL 1399264 (Pa.Super., June 15, 2005).

Probation for Maryland man charged with “spamming by proxy”

(Thanks to Inter Alia for alerting me to this story.)

The Baltimore Sun has reported that a Maryland man has pleaded guilty to misusing electronic mail, a misdemeanor in Maryland. The judge sentenced the man to probation for signing up his former supervisor to receive e-mail from other sources without her permission or knowledge. In addition to probation, the court ordered the defendant to perform 100 hours of community service by educating children about the appropriate use of the Internet.

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

One of the issues in the recent Indiana case of Munster v. Groce was whether the plaintiff had exercised due diligence in locating the missing defendant. In concluding that the plaintiff hadn’t done his part, the court noted that the plaintiff had neither conducted a public records search nor hired a skip-trace service.

Moreover (and perhaps more shockingly), the plaintiff hadn’t even done a Google search. The court seemed to chastise this failure: “[W]e discovered, upon entering “Joe Groce Indiana” into the Google search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce’s mother that listed numerous surviving relatives who might have known his whereabouts.”

Munster v. Groce, — N.E.2d —-, 2005 WL 1364662, at n. 3 (Ind.App., June 8, 2005).

What does it mean to “possess” an image file?

In a case of first impression under Virginia law, the Virginia Court of Appeals has applied “familiar principles of constructive possession of contraband” to define “possession” in the context of computer files.

In the case of Kromer v. Commonwealth, the appellant challenged the sufficiency of the evidence put forward to convict him of unlawful possession of child pornography. Specifically, the appellant argued that the Commonwealth failed to prove that he knowingly possessed the illegal images contained on the hard drive of his computer. The Court of Appeals rejected the appellant’s arguments and affirmed the conviction.

The appellant had contended that the images were “hidden” on his computer, and that someone else could have downloaded them from the Internet. However, the court tipped its hat to the federal case of U.S. v. Tucker, 305 F.3d 1193 (10th Cir. 2002) to conclude that whether the appellant or someone else sought after the images was not relevant to the analysis. Instead, the relevant inquiry was whether the appellant knowingly possessed the images after they were downloaded.

In holding that there was sufficient evidence to show that the appellant had knowingly possessed the images, the court applied a “constructive possession of contraband” analysis. Under the “totality of the circumstances,” the trial court was correct in determining that the appellant knowingly possessed the illegal images.

To support a conviction based on constructive possession under Virginia law, the Commonwealth had to show (1) that the appellant was aware of the presence and character of the illegal images and (2) that the illegal images were subject to his dominion and control.

The appellant had stored the images in a KaZaA directory which was linked to a desktop shortcut. This provided sufficient evidence to show he was aware of the presence of the files. Furthermore, the descriptive file names would have put him on notice of the character of the images. Regarding the question of whether the appellant had control of the images, the court observed that the appellant had disallowed sharing of the contents of the KaZaA folder in which the images had been stored. Moreover, the copy of Windows XP on the computer was registered in the appellant’s name, and he had provided consent for the F.B.I. to search his residence and computer.

Kromer v. Commonwealth, — S.E.2d —, 2005 WL 1388056 (Va.App., June 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
Evidence
Blogging basics
Podcasting
First Amendment
File sharing litigation
Trademarks
Reparations

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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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Evidence

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 americaneaglestores.com.

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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.

InternetCases.com Podcast — June 10, 2005

This week’s podcast discusses the case of The Cruising Co. Etc. v. Mahnken Enterprises, Inc. et al., 2005 WL 1354532 (W.D.Wash., June 6, 2005), in which the court denied a motion for preliminary injunction against a former employee maintaining control over a company’s website.



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