I’ve started up a group on Facebook, and if you’re a member of the Facebook community, I invite you to join. I have no agenda for the group’s activities, if there ever are any. But the discussion board feature could be fun, and it also seems like it could be a good networking catalyst. Hope to see you there.
Here’s a link to the group page: http://turo.us/3Hrhf
(Drop me a line if you have any trouble accessing it.)
Steinbuch v. Cutler, No. 05-970 (D.D.C. May 16, 2007)
Back in late October 2006, the court in the case of Steinbuch v. Cutler allowed the infamous blogger Ana Marie Cox a/k/a Wonkette to be added as a defendant. [Read about that here.] The case raised the question of whether simply linking to another site could subject a blogger to tort liability. We’re now learning that Wonkette has been dismissed.
The court’s order granting the motion to dismiss hasn’t been loaded onto PACER yet, but here is a copy of the motion and brief Wonkette filed back in January. In that motion, she argued a number of reasons why the case against her should be dismissed, including immunity under the Communications Decency Act [at 47 U.S.C. 230]. It isn’t clear yet what the exact basis for dismissing the case was, but, according to this article the court agreed that the claims were time-barred.
The day after Wonkette was added to the suit, Eric Goldman suggested that Section 230 immunity would apply. And Wonkette’s brief is a nice walk down Section 230 lane.
Site Pro-1 v. Better Metal, LLC, No. 06-6508 (E.D.N.Y. May 9, 2007)
Site Pro-1 sued its competitor Better Metal, LLC, accusing Better Metal of committing trademark infringement when it purchased the terms “site,” “pro,” and “1” to trigger sponsored links on Yahoo! The facts of the case were “straightforward and not in dispute”: the mark SITE PRO-1 did not appear in the sponsored search results linking to Better Metal’s website.
Better metal moved to dismiss the complaint under FRCP 12(b)(6). The court granted the motion.
Relying heavily on the cases of 1-800 Contacts v. When-U, 414 F.3d 400 (2d Cir. 2005), Merck & Co., v. Mediplan Health Consulting, Inc., 425 F.Supp.2d 402 (S.D.N.Y. 2006), and Rescuecom Corp. v. Google, Inc., 456 F.Supp.2d 393 (N.D.N.Y. 2006), the court held that the internal use of the plaintiff’s mark to trigger the sponsored listings was not “use” as provided under the Lanham Act. The key question was “whether the defendant placed plaintiff’s trademark on any goods, displays, containers, or advertisements, or used plaintiff’s trademark in any way that indicate[d] source or origin.” Because the court answered that question in the negative, Site Pro-1’s infringement claim failed.
Hat tip to Eric Goldman.
GTX Global Corp. v. Left, No. B192626, 2007 WL 1300065 (Cal.App. 2 Dist. May 4, 2007)
Andrew Left publishes the blog stocklemon.com, and in 2005, he made a couple of posts critical about plaintiff GTX. In turn, GTX sued Left for invasion of privacy and defamation. At the trial court level, Left moved to strike the complaint under California’s Anti-SLAPP statute [Code of Civil Procedure section 425.16], and the court threw out the case. GTX sought review with the California Court of Appeal, which affirmed the trial court’s dismissal.
When a defendant files an Anti-SLAPP motion in California, the court first considers whether the plaintiff’s cause of action arises from any act of the defendant’s taken in furtherance of that defendant’s right of petition or free speech. If the court finds the defendant has made the threshold showing, it then determines whether the plaintiff has demonstrated a probability of prevailing on its claim.
In this case, there were a number of statements made on the Stocklemon blog which GTX claimed were false and defamatory, including allegations that the company was headed by a convicted felon, and engages in stock fraud.
The court held that these statements arose from an act taken in furtherance of Left’s right of free speech, and that GTX had failed to establish a probability of prevailing on its claims. It held that for purposes of the Anti-SLAPP statute, the website was to be considered a public forum. But the public forum status of the place where the statements were made was not determinative — the court also held that the statements were connected with an issue of public interest.
In determining that GTX had failed to demonstrate a likelihood of prevailing on its claim, the court found that GTX had “adduced no evidentiary support for any of its causes of action.” The plaintiff did not “identify a single piece of evidence to support its allegations that defendant’s challenged statements were false or otherwise defamatory.”
Accordingly, the court affirmed the dismissal of the action against Left, and awarded Left the attorney’s fees he had incurred, both at the trial court level and on appeal.
Williams-Sonoma Inc. v. Friendfinder Inc., No. 06-6572, 2007 WL 1140639 (N.D.Cal. April 17, 2007).
Williams-Sonoma, the well-known purveyor of kitchen and other household goods, and owner of the POTTERY BARN trademark, filed suit against a number of defendants, seeking ot prevent those defendants from using the POTTERY BARN mark in meta tags and in HTML on certain sexually-explicit websites. Many of the defendants were foreign, and a number of them listed incorrect contact information, which foiled Williams-Sonoma’s attempts to serve process in the traditional manner.
Undaunted, Williams-Sonoma asked the court for an order authorizing it to serve process in the manner in which Williams-Sonoma had already been able to communicate with the defendants – by e-mail. The court granted the request.
To determine whether service of process by e-mail was proper, the court looked at some of the more interstitial parts of Fed. R. Civ. P. 4, which deals with service of process. Rule 4(h) says that foreign businesses may be served in the same manner as individuals not within any judicial district of the United States. Rule 4(f) provides the procedure for that, and allows service “by other means not prohibited by international agreement as directed by the court.”
The court determined that the circumstances of the case warranted service by alternative means. Nodding to Rio Properties, Inc. v. Rio Intern. Interlink, 284 F.3d 1007 (9th Cir. 2002), the court found that Williams-Sonoma had established that e-mail was an effective means of communication with the defendants, and that messages sent to the defendants would serve the purposes of notifying them of the pending litigation. Moreover, there was no indication that service in that manner would contravene any international agreement.
CNET is reporting on a cease and desist letter some company has sent to Microsoft, Apple, Adobe and others. (I’m not going to mention the company by name because I don’t want to play into what Jessica Litman and I agree is an attempt to garner some unwarranted publicity — see the CNET article.) Simply stated, the company, which has apparently developed some kind of technology designed to prevent ripping of digital audio streams, claims that Microsoft et al. are actively avoiding the implementation of the company’s technology in their products. It clams that this avoidance is a circumvention prohibited under the DMCA.
I don’t opine much on this site, but this company’s theory is based on, at best, a hypertechnical and unsupportable reading of the DMCA. As you know, “circumvention” under the DMCA means to “descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.”
Did you see the word “avoid” there? That’s what the company is apparently hanging its hat on. And the argument sounds clever, until you actually think about the DMCA and what it says.
One has to read the DMCA prohibitions on avoiding, bypassing, removing, deactivating, or impairing technological measures along with the terms immediately preceding, namely, descrambling and decrypting. These prohibited activities share a common theme of some sort of active disabling of the technology, not simply choosing not to use an available technology.
There’s a maxim that Aristotle probably made up called sui generis that lawyers and courts are supposed to use when interpreting statutes. Essentially, when you see a group of terms together in a statute, one is to attribute a common meaning to those terms. Interpreting the meaning of “to avoid” in the way that this company suggests would not be consistent with this principle.
I sincerely hope to not see any reported decisions on these facts.
Howard v. Missouri Bone and Joint Center, Inc., No. 05-476, — N.E.2d —-, 2007 WL 1217855 (Ill.App. 5th Dist. April 24, 2007)
Plaintiff Howard filed suit in Illinois against defendant Missouri Bone and Joint Center, alleging personal injury arising from “athletic training services” that defendant provided to plaintiff at its Missouri facility. Defendant moved to dismiss for lack of personal jurisdiction, arguing that its contacts with Illinois were insufficient: it had no facilities and did not transact business there, and owned no property located in the state. Further, defendant argued it was not registered to do business in Illinois, and all its activities took place at its Missouri location.
Responding to the motion to dismiss, plaintiff argued that the court could exercise general jurisdiction over defendant due to its “continuous and systematic general business contacts” in Illinois. Relying on the Zippo sliding scale test [Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997)], plaintiff claimed these contacts arose through defendant’s website which allowed its visitors to make appointments, fill out surveys, and ask questions.
The court initially denied the motion to dismiss, and the case proceeded to trial. After the court awarded a substantial judgment to the plaintiff, the defendant moved for reconsideration of the question of personal jurisdiction. This time the court found that it lacked personal jurisdiction, and it vacated the judgment. Plaintiff sought review with the Appellate Court of Illinois. On appeal, the court affirmed.
The appellate court rejected the Zippo test:
Instead, we find that the web page’s level of interactivity is irrelevant. In reality, an interactive website is similar to telephone or mail communications. A passive website is much the same as advertising on the radio or in a magazine. An ad on the Internet is no different than an ad in any other medium that provides a telephone number or other means to contact a potential defendant. It is mere advertisement or solicitation of business. Illinois courts have long held that a mere advertisement or solicitation is not enough to sustain personal jurisdiction in Illinois.
In this case, the court held that the defendant had done nothing more that advertise and solicit business in Illinois. That conduct, in and of itself, was insufficient to give rise to personal jurisdiction. The court compared the facts of the case to two previous Illinois appellate cases, Pilipauskas v. Yakel, 258 Ill.App.3d 47 (1994), and Excel Energy Co. v. Pittman, 239 Ill.App.3d 160 (1992) to support its holding. The nature and quality of the acts occurring in Illlinois were insubstantial. The plaintiff had chosen to contact the defendant, and had chosen to travel to Missouri for treatment. Accordingly, the court held that exercising jurisdiction over the defendant “would not be fair, just, or reasonable.”
Veoh Networks’ Viral (for which I am the Legal Correspondent) has released Episode 18. I do a brief piece on the basics of copyright. My part comes in at about the 2:50 mark. But watch the whole episode — it’s entertaining!
Thanks to my friend Mike Pugh who helped me film this segment.
[If you’re seeing this in an RSS reader and the embedded video isn’t showing up, click through to see it.]
State v. A.B., No. 67A01-0609-JV-372 (Ind. App. April 9, 2007) [Download the opinion.]
A middle school girl in Greencastle, Indiana created a bogus MySpace profile impersonating her school’s principal. She invited one of her classmates, A.B., to be a “friend,” and A.B. posted an obscenity-laced (yet surprisingly grammatically accurate) comment that was critical of the school’s policy against certain types of body piercings. A.B. also created a group on MySpace that was likewise critical of the principal, and posted content there.
The State filed a delinquency petition against A.B., alleging several violations of the state’s harassment statute, Ind. Code § 35-45-2-2(a)(4). The trial court issued an order adjudicating A.B. to be a delinquent child, and gave her nine months of probation.
A.B. sought review, arguing, among other things, that the web content she created was political speech protected by the First Amendment. On appeal, the court agreed and reversed the adjudication of delinquency.
The court applied a two-part test to review the constitutionality of the application of the harassment statute. It determined (1) whether state action had restricted A.B.’s expressive activity, and (2) whether the restriction constituted an abuse of the right to speak. The court answered both of these questions in the affirmative.
In determining that the restriction was an abuse of A.B.’s right to speak, the court did “not engage in speculation as to what the speaker might have meant,” but employed an objective standard to determine that the speech was to be understood as political speech.
This form of speech is to be protected, absent some “particularized harm analogous to tortious injury or readily identifiable private interests.” The court found that the state presented no evidence of this sort of particularized harm, thus the constitutional right to speak had been contravened.
Great Notions, Inc. v. Danyeur, No. 06-656, 2007 WL 944407 (N.D. Tex. March 28, 2007)
Courts faced with the question of personal jurisdiction involving eBay transactions have consistently held that the typical online auction process, in and of itself, is insufficient to confer specific personal jurisdiction over an out-of-state defendant. The recent case of Great Notions, Inc. v. Danyeur, No. 06-656, 2007 WL 944407 (N.D. Tex. March 28, 2007) does not deviate from that trend.
Plaintiff sued an Arkansas defendant for copyright infringement and unfair competition. The defendant was accused of counterfeiting and selling plaintiff’s designs through his online account with eBay. There were no allegations that the eBay auction process was altered or circumvented in any way.
Defendant moved to dismiss for lack of personal jurisdiction. The court granted the motion, dismissing the case without prejudice.
Because the Texas long-arm statute confers jurisdiction to the limits of the federal constitution, the court concerned itself only with the federal due process inquiry. That question involved an analysis of (1) whether the defendant had minimum contacts with Texas resulting from an affirmative act on his part such that he could reasonably anticipate being haled into a Texas court, and (2) whether the exercise of jurisdiction would comport with traditional notions of fair play and substantial justice.
The court needed only to consider the first element, namely, whether there were minimum contacts with Texas. It held that conducting a straightforward eBay auction was insufficient to confer specific jurisdiction. The facts of this case could be distinguished from another Northern District of Texas case by the name of McGuire v. Lavoie, No. 03-161, 2003 WL 23174356 (N.D. Tx. Aug 19, 2003), in which personal jurisdiction was found where the eBay seller ended the auction prematurely and entered into a traditional sales relationship through a series of transactions with a known buyer.
For a recent eBay personal jurisdiction case with a different result, read about last year’s decision by the Eastern District of Michigan in the case of Dedvukaj v. Maloney.
