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
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 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.

Download the podcast

Music courtesy of Blandy under a Creative Commons license.

If you enjoy listening to the InternetCases.com Podcast, please vote for it at Podcast Alley.

Hotel reservation website gave rise to personal jurisdiction in California

The California Supreme Court has weighed in on the perennial Internet law issue of when a defendant is subject to personal jurisdiction in another state based on the activities of its website. In the case of Snowney v. Harrah’s Entertainment, Inc. et al., decided on June 6, 2005, the court determined that the out-of-state defendants’ website was sufficient to establish personal jurisdiction in California.

Plaintiff Snowney filed a class action lawsuit in California against a group of defendants who owned and operated hotels in Nevada. Snowney complained that the defendants had, without providing proper notice, charged a $3 energy surcharge to each person who made a hotel reservation. None of the defendants conducted business in California or had bank accounts there. Among their many marketing activities, however, the defendants maintained a website through which visitors could obtain room quotes and make reservations. Moreover, the website “touted the proximity of the hotels to California” and provided driving directions from California.

The defendants had claimed that the California courts could not exercise personal jurisdiction over them, and the trial court agreed, quashing the summons. The appellate court, however, reversed the trial court and the matter went to the California Supreme Court which held that the defendants’ website, especially in conjunction with the defendants’ other marketing activities, was sufficient to give rise to personal jurisdiction.

The court found that the website “specifically targeted residents of California.” It further observed that the defendant had conceded that many of its patrons came from California, and that some of those patrons had made reservations using the website. Through these activities, the defendants had “purposefully availed themselves to the privilege of conducting business in California via the Internet.”

Snowney v. Harrah’s Entertainment, Inc., 2005 WL 1324094 (Cal., June 6, 2005).

Controversy over law blogging in Kentucky

Ben Cowgill, author of the excellent Legal Ethics Blog, reports that he has been facing resistance from the Kentucky Attorney’s Advertising Commission over the very existence of his weblog. Under the relevant Kentucky rule of professional conduct (7.02), each time a lawyer advertises legal services in the state, he or she is required to submit a copy of each advertisement to the Commission and pay a $50 filing fee. The Commission also requires an additional filing fee each time the advertisement is modified.

The Commission has apparently expressed that law-related weblog postings fall under this rule, as the definition for “advertisements” includes any communication that contains a lawyer’s name “or other identifying information.” As Mr. Cowgill correctly observes, “it would be practically impossible for a Kentucky lawyer to publish a law-related web log if he or she were required to pay a $50.00 ‘filing fee’ each and every time the content of the blog is modified.”

Communications between Mr. Cowgill and the Commission continue. This controversy is an interesting and compelling example of “antiquated” regulations being outpaced by the positive consequences of modern forms of communication.

Read more about the matter at f/k/a and at The Legal Underground.

InternetCases.com to host Blawg Review No. 10

Each week, a different law blogger takes a turn hosting a wrap-up of notable “blawg” postings from the past week. See, for example, Blawg Review #9 hosted this week by Juris Pundit. Blawg Review is a great way to see in a snapshot what’s new and interesting in the legal blogosphere.

InternetCases.com will be hosting Blawg Review #10, which will be posted on Monday, June 13, 2005. If you are a “blawgger” and write a posting about which you’re particuarly proud this week, or if you run across someone else’s blog posting that is law-related and noteworthy, let me know about it before the end of the day this coming Saturday, June 11. I’ll try my best to include it. Please see the submission guidelines.

Accusations that former employee posted obscene material on website were not defamatory

Mark Cody was fired from his job as general sales manager for WPWX-FM in Hammond, Indiana. Soon after his termination, someone posted obscene images on the WPWX website. Cody’s former boss, Taft Harris, wrongfully accused Cody of posting the images. In a meeting of the radio station’s employees, Taft stated, “This has got to be Mark Cody. I know Mark did this. I know he is responsible for this.”

Cody sued Harris and the owner of the radio station alleging various causes of action, including defamation. Cody claimed that Harris’s comments were defamatory per se, because they were disparaging of Cody’s professional reputation, i.e., his ability to manage a sales force.

The district court dismissed Cody’s defamation count, and the Seventh Circuit affirmed the dismissal. The court held that Harris’s statements were not defamatory per se, because instead of disparaging Cody’s ability as a sales manager, they merely attacked his personal integrity. Because there was no defamation per se, it was necessary for Cody to have pled and proven actual damages for defamation, which he had not done.

Cody v. Harris, — F.3d —, 2005 WL 1274352 (7th Cir., May 31, 2005).

No spam with those potatoes: Idaho federal court tosses CAN-SPAM complaint

Falsity in body of message not a violation of Act.

Internet Access Services Providers LLC filed suit in the U.S. District Court of Idaho against Real Networks under various provisions of the CAN-SPAM Act, 15 U.S.C. §7701 et seq. Real Networks moved to dismiss, and the court granted its motion. The court noted that pursuant to 15 U.S.C. §7704(a)(1), a commercial e-mail message must not contain materially false or misleading “header information.” Because the only falsity that the plaintiff alleged concerned a statement contained in the body of the email, the Act did not apply.

In denying the defendant’s award of legal fees and costs, the court declined to exercise its discretion to do so, given the relatively new and uncertain scope of the CAN-SPAM Act.

Internet Access Services Providers LLC v. Real Networks, Inc., 2005 WL 1244961 (D. Idaho, May 25, 2005).

Escort’s website relevant evidence for truthfulness

Defendant was hired as an independent “escort” and accompanied her client to the Embassy Suites Hotel in Livonia, Michigan. During the encounter, a scuffle ensued, and the defendant shot her client. She was charged with and convicted of assault with intent to commit murder. At trial, the defendant argued self-defense, claiming that her client had attacked her first.

Throughout the trial, the defendant had maintained that she did not engage in prostitution, and that there was nothing illegal about the services she provided. Although the question of whether the defendant was a prostitute was not related to any of the elements of the crime or to her defense, the prosecution wanted to challenge her truthfulness. To do that, the prosecution introduced into evidence the defendant’s website, which she apparently used to attract new clients.

The defendant argued that this evidence was improperly admitted because it was not relevant. The court disagreed, however, and held that it was relevant to her truthfulness, and that the jury could properly consider it to determine whether or not she was likely telling the truth in her testimony. The court further held that the website’s probative value outweighed its prejudicial effect.

People v. Earle, 2005 WL 1224611 (Mich.App., May 24, 2005).