Attorney Evan Brown

May 11, 2006 First Amendment

Can Congress restrict minors’ access to social networking websites?

The Childrens Internet Protection Act (“CIPA”) curbs federal funding for any public library or school that will not employ software filters to prohibit minors from accessing pornographic materials. There is a bill [H.R. 5319] before Congress called the Deleting Online Predators Act (DOPA for short) that seeks to expand the scope of CIPA. The Bill calls for restricting federal funding for public libraries and schools that do not block minors’ access to chat rooms and social networking sites (such as MySpace.com).

CIPA withstood a constitutional challenge before the United States Supreme Court in 2003. [U.S. v. American Library Assn., 539 U.S. 194 (2003)] If DOPA is enacted, it will likely face First Amendment scrutiny as well. Might the analysis be different this time around?

In the American Library Association case, the Supreme Court observed that “most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason.” Accordingly, it does not violate library partrons’ First Amendment rights for there to be filters on the computers at the library.

In blocking access to chat rooms and social networking sites, aren’t libraries going a step futher, inasmuch as they are literally obstructing the “speech” of library patrons? Perhaps. But a court hearing such a challenge would once again have a ready analogy from real-world library experience: when was the last time you saw a successful constitutional challenge to a librarian enforcing the library’s quiet rule?

[News.com’s coverage]

May 5, 2006 Defamation

What’s the story about the Maine blogger lawsuit?

Updated to add: The plaintiff Warren Kremer Paino Advertising has voluntarily withdrawn its lawsuit against defendant Lance Dutson. From Ronald Coleman: “They didn’t expect pushback — much less pushback from the whole ‘blogosphere,’ with lawyers lining up to defend the little guy. The handwriting was on the wall. Or the screen, I guess.” [More info here]

A number of InternetCases.com readers have e-mailed me asking about the recently-filed defamation case against Maine blogger Lance Dutson. The case is called Warren Kremer Paino Advertising, LLC v. Dutson and has been filed in the U.S. District Court for the District of Maine.

Here’s just about everything you need to know about the legal issues in the case: there is nothing new under the sun … but the defendant is a blogger.

As I emphasized a couple of weeks ago when I spoke on the topic of blogging and defamation, the traditional principles of defamation law apply with equal force in the blogosphere. Just because a defendant is a blogger does not mean he or she is held to a stricter or more lenient standard than a speaker in the brick-and-mortar world.

Under Maine law, which the Federal court hearing the case will have to apply, a successful defamation plaintiff must prove that (1) the defendant made a false and defamatory statement concerning the plaintiff, which was contained in (2) an unprivileged publication to a third party, (3) that the defendant was at least negligent in making the statement, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Lester v. Powers, 596 A.2d 65 (Me. 1991).

Because the subject matter of the alleged defamatory postings involves a matter of public concern (e.g., accusations of misappropriated tax revenue), the plaintiff will have to prove that the statements contained in the postings were made with “actual malice.” This heightened standard for matters of public concern has its origins in the landmark Supreme Court cases of New York Times v. Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Although one should not lose sight of the fact that there really is nothing unique about the legal issues in an online defamation claim, the allure of a blogger-defendant is undeniable. The democratizing aspect of blogs as media naturally elicits all kinds of First Amendment and root-for-the-underdog sentiments. Attorney Ron Coleman, who is assisting in Dutson’s defense, observes,

“Most defamation claims are brought for the simple purpose of intimidating defendants who can’t afford lawyers. Historically, therefore, media outlets have made it their business to find a way financially to keep lawyers on retainers. That’s not true of bloggers — at least not yet. Until then, bloggers can count on the good offices of public-spirited [law] firms … and the coordinating and legal contributions of fellow bloggers at the Media Bloggers Association.”

In any event, one fact in the case could yield some entertainment value if it is the subject of a motion. You may recall that mere opinions are not actionable as defamatory. One of the allegations in the case is that Dutson defamed the plaintiff when he wrote that it was “pissing away” taxpayer money. It would be enlightening to read the court’s analysis on the question of whether that statement “communicates [a] factual proposition susceptible of proof or refutation.”

May 2, 2006 Computer Crime

Second Life DoS attacks raise interesting damages issues under Computer Fraud and Abuse Act

News.com has run a story about this past weekend’s Denial of Service (“DoS”) attacks on the servers for Second Life, the increasingly popular virtual world. Second Life is a good example of how wildly complex some online virtual worlds have become. Far from being merely for simple entertainment, Second Life supports its own economy (based on a currency called the Linden), and facilitates sophisticated human relationships. [More on Second Life.]

Linden Lab, the purveyor of Second Life, most likely has a strong cause of action under the the Computer Fraud and Abuse Act (“CFAA”) against those responsible for the DoS attacks. What is most interesting about the situation, however, is the way in which the attacks demonstrate how immersion in a virtual world can bring the nature of damages for unlawful online conduct closer to one’s heart.

Traditionally, the nature of damages for violations of the CFAA have been rather predictable, and closely tied to a commercial context. For example, in Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 F.Supp.2d 1121 (W.D. Wash. 2000), the plaintiff successfully pled damage to its computers where former employees allegedly stole trade secrets and handed them over to a competitor. In EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001) the plaintiff could recover the payment of consultant fees it had to incur in order to assess the effect of the defendant’s alleged content scraping. In U.S. v. Mitra, 405 F.3d 492 (7th Cir., 2005), the court upheld a criminal conviction under the CFAA where the defendant sent out a strong radio signal that disabled police communications.

Some of the damages in the Second Life situation could be a bit more off-the-wall. The News.com article quotes Robin Harper, Linden Lab’s vice president of community development and support as saying, regarding the attacks, “It disrupts events. People have weddings planned or a party or something, and it gets in the way.”

These effects are probably not what Congress had in mind when it enacted the CFAA. As more “life” populates virtual worlds, however, the susceptibility to harm is likely to change in form. The Second Life situation could be a harbinger of a transforming aspect of damages.

May 2, 2006 Privacy

H&R Block can proceed with its suit over unauthorized access to customer data

In early 2005, H&R Block noticed a strange new pattern. It began getting an unusual amount of bulk garnishment orders from defendant J&M Securities, a debt buyer, requiring H&R Block to withhold portions of some of its clients’ tax refunds. In light of the detail supporting the garnishment orders, Block believed that J&M “could not possibly have gathered Block’s clients’ income tax information … without improperly accessing and obtaining Block’s confidential information.”

Block filed suit against J&M, alleging several claims, including violations of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2701 and 2707. (This portion of the Wiretap Act is also commonly referred to as the Stored Communications Act.) J&M moved to dismiss, arguing, among other things, that H&R Block had failed to properly allege its claims under the ECPA. The court denied J&M’s motion to dismiss.

J&M had argued that Block should not be permitted to plead “access by inference” to the confidential stored communications. Applying the liberal pleading standards used in Federal litigation, the court held that Block had sufficiently placed J&M on notice that Block was alleging unauthorized access. The court went on to hold that “finding the fact of ‘access’ or ‘no access’ [was] a task for discovery, summary judgment, and trial.”

The court essentially instructed J&M how to argue a summary judgment motion it could file after discovery. It observed that “[J&M’s] best argument is that [Block] is not a provider of an ‘electronic communication service,’ and thus the ECPA does not regulate access to [Block’s] facility.”

In support of that observation, the court cited to the cases of In re JetBlue Airways Corp. Privacy Litigation, 379 F.Supp.2d 299 (E.D.N.Y. 2005), In re DoubleClick Inc. Privacy Litigation, 154 F.Supp.2d 497 (S.D.N.Y. 2001), and Crowley v. Cybersource Corp., 166 F.Supp.2d 1263 (N.D.Cal. 2001). Each of those cases indicated that a provider of web services is not the same as a provider of an electronic communication service.

Nonetheless, the court fell short of holding that Block was not a provider of an electronic communication service, concluding that such a holding would be “premature,” and would require “speculation about the nature of [Block’s] role in electronic communication.” The court denied the motion to dismiss as to the ECPA claim.

H&R Block Eastern Enterprises, Inc. v. J&M Securities, LLC, (Slip Op.) 2006 WL 1128744 (W.D. Mo., April 24, 2006).

May 1, 2006 Contracts

Court examines conversion claim in breach of EULA case

Plaintiff Meridian Project Systems, Inc., a purveyor of construction project management software, was peeved to see that a couple of its licensees collaborated to reverse engineer Meridian’s flagship software product. Meridian filed suit, alleging numerous claims, including conversion. It claimed that the defendants converted both tangible property relating to the licensed software, as well as “concepts, logic, processes, features and functions of [the software] to the extent not covered by its copyrights.”

The defendants moved to dismiss, alleging that Meridian had failed to state a claim upon which relief could be granted. Furthermore, the defendants argued that the claim of conversion of the intangible aspects of the software was preempted by the Copyright Act. The court denied the motion in part, and granted it in part.

The court held that Meridian adequately alleged conversion of the physical components of the software. The End User License Agreement (“EULA”) provided that upon any violation of the agreement, the licensees were to either destroy or return the software’s physical components. In this case, Meridian sufficiently alleged a breach of the agreement, namely, the act of reverse engineering the software. Because the defendants did not thereupon return the “disks, files, and other documents,” such items were “unlawfully retained.” These allegations supported a claim of conversion.

There could be no conversion, however, of the intangible aspects of the software. The court held that the elements which Meridian claimed were converted fell within the general subject matter of copyright, even though they were not actually entitled to copyright protection. Meridian’s claim arising out of the alleged conversion was one seeking to assert rights equivalent to a claim for copyright infringement. Accordingly, this portion of the conversion claim was preempted by the Copyright Act.

Meridian Project Systems, Inc. v. Hardin Construction Co., (Slip Op.) 2006 WL 1062070 (E.D. Cal., April 21, 2006).

April 28, 2006 Podcasts

A must read: The Podcasting Legal Guide

The long-anticipated Podcasting Legal Guide is now available. Written by Colette Vogele and Mia Garlick, it lives up to its stated purpose of “[providing] you with a general roadmap of some of the legal issues specific to podcasting.” It is very interesting to see such a well thought out application of traditional legal principles to the brand new and untested issues that arise from podcasting.

What’s more, the PLG has been released under a Creative Commons license. What else would one expect from such forward-thinking authors? I enjoyed meeting Mia at last week’s Blog Law and Blogging for Lawyers Seminar, and have worked with Colette as opposing counsel in a rare matter dealing with podcasting. I assure you, they know what they’re talking about.

April 27, 2006 Copyright

Court slaps BitTorrent user with $35,000 default judgment

Columbia Pictures filed a copyright infringement suit against defendant May in the U.S. District Court for the Eastern District of Wisconsin. Columbia accused May of operating a server and website that allowed users to download infringing copies of copyrighted motion pictures and television shows for free and without authorization.

Despite numerous opportunities, May never answered Columbia’s complaint, nor contested the entry of default. In awarding damages to Columbia, the court considered “the massive online piracy that May apparently orchestrated, and the harsh effects illegal downloads have on the motion picture industry.” Accordingly, the court concluded that Columbia’s request for $35,000 in statutory damages was a “suitable award.”

In addition, the court enjoined May from “downloading, uploading, and/or otherwise reproducing or distributing [Columbia’s] copyrighted works, whether using the BitTorrent network or by any other means.”

Columbia Pictures Indus. v. May, (Slip Op.) 2006 WL 1085120 (E.D.Wis., April 24, 2006).

April 26, 2006 Anonymity, Defamation, First Amendment, Litigation, Privacy

Company had no standing to challenge discovery on behalf of anonymous defamers

After seeing what it believed to be defamatory statements about it on Yahoo! Finance and Silicon Investor message boards, plaintiff Matrixx Initiatives, Inc. (“Matrixx”) filed a lawsuit against several “John Doe” defendants. Through information obtained from Yahoo!, Matrixx determined that certain of the alleged defamatory statements were posted with computers owned by Barbary Coast Capital Management. Matrixx took the deposition of one Mr. Worthington, the manager of Barbary Coast, asking him to identify the anonymous Internet users who posted the alleged defamatory statements. Worthington refused.

Matrixx filed a motion to compel Worthington to answer the questions, and the trial court granted the motion. Worthington and Barbary Coast sought review, arguing that the posters’ First Amendment right to speak anonymously should prohibit the disclosure of their identities. On appeal, the court affirmed the decision of the lower court, holding that Worthington and Barbary Coast did not have standing to invoke the anonymous posters’ First Amendment rights.

In reaching its decision, the court distinguished two other cases in which the recipient of a subpoena did have standing to challenge the unmasking of another person. In the cases of In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va. App. 2000), and In re Verizon Internet Services, 257 F.Supp.2d 244 (D.D.C. 2003)(both cases reversed on other grounds), Internet service providers did not have to identify anonymous customers pursuant to subpoenas served on the ISPs. In each of these cases, the courts held that the ISPs had standing to assert the customers’ rights to remain anonymous, because the customer relationships were sufficiently close. In this case, however, the court held that “by contrast, we are presented with no ‘close relationship’ — or, indeed, any relationship — between appellants and the individuals for whom they are seeking First Amendment protection.”

Matrixx Initiatives, Inc. v. Doe, — Cal.Rptr.3d —, 2006 WL 999933 (Cal.App. 6 Dist, April 18, 2006).

File sharers now have even more to fear

Decision confirms that illegal P2P users can expect to get sued many miles from home.

The United States District Court for the District of Columbia has handed another procedural victory to plaintiff record companies in a copyright infringement suit relating to music traded over P2P networks. The court ruled that it had personal jurisdiction over an out-of-state accused file-sharer merely because the defendant offered sound recordings to the public and was able to download recordings made available by others.

Plaintiff record companies filed suit against 35 John Doe defendants, identifying those defendants by their IP addresses and the songs they were accused of illegally distributing. John Doe #18, who was notified of the suit by his ISP Verizon, asked the court to dismiss the case for lack of personal jurisdiction, arguing that he did not have sufficient contacts with the District of Columbia.

The court denied John Doe #18’s motion to dismiss. For one thing, the motion was premature. “Simply, the parties [could not] formally litigate any aspect of personal jurisdiction until the defendant [had] actually been identified.” Without knowing who the defendant was, the court could not tell whether it had jurisdiction.

As it turns out, the prematurity of the motion was inconsequential. The court held that, anonymous or not, the plaintiffs established that the court had personal jurisdiction over John Doe #18. By simply contracting with Verizon, a “District of Columbia-based ISP,” and using a Verizon facility to trade files, John Doe #18 was “transacting business” in the District, and caused tortious injury in the District.

Further, by simply making files available for download by others through his file-sharing software, and being able to download other files, John Doe #18 “clearly directed tortious activity into the District of Columbia.”

Finally, citing to the case of Gorman v. Ameritrade Holding Corp., 293 F.3d 506 (D.C.Cir. 2002), and the famous case of Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, (W.D.Pa.1997), the court held that John Doe #18’s computer was “transformed . . . into an interactive Internet site.” This “interactivity” provided the sort of “continuous” and “systematic” contacts with the forum sufficient to support personal jurisdiction over the defendant.

Virgin Records America, Inc. v. Does 1-35, Slip Copy, 2006 WL 1028956 (D.D.C., April 18, 2006).

April 12, 2006 Miscellaneous

Blog Law & Blogging for Lawyers Seminar

I am quite honored to have been asked to speak at next week’s Blog Law & Blogging for Lawyers Seminar at the Pan Pacific Hotel in San Francisco. I will be speaking at 10:30 a.m. on Thursday, April 20, 2006 on defamation liability for bloggers and blog commenters. How humbling it will be to share the stage with Professor Raymond Nimmer, who will discuss intellectual property ownership issues relating to blogging.

The two-day seminar will feature appearences from a number of true law-and-technology luminaries, among them Kurt Opsahl, Lauren Gelman, Mia Garlick, and Denise Howell. My friend Dennis Crouch of the Patently-O blog is a co-chair of the seminar, and I thank him for the opportunity to be a part of this very interesting event.

If you’re a reader of InternetCases.com and you plan on being there, be sure to say hello.