Cyberlaw Central

I’ll be heading over to the Hilton for ABA Techshow 2008 Thursday, Friday, and Saturday this week. I am looking forward to catching up with those I’ve met in previous years. If you will be there, please stop me and say hello! I also plan to post somewhat, at least once per day, during the event.

I have enjoyed coming to Techshow as I always learn new things to implement in my practice, as well as to hang out with fellow “geeky lawyers” as my wife would say. It truly is a good event, and it is so nice that it is held here in Chicago.

That aside, I want to point out a must-read post from Dennis Crouch at Patently-O about the blogger formerly known as the Troll Tracker, who has been sued for defamation. Here’s a link to my prior article, which admittedly was written before he unveiled his identity. Dennis provides links to the complaints in his post for those who are so inclined.

[Originally posted by Kevin Thompson at Cyberlaw Central]

Public Defender Stuff has created a really special edition of Blawg Review, No. 143, in honor of Martin Luther King day. I urge you to check it out. As I am hosting Blawg Review #144 this next Monday, please get your submissions in early so they can be included.

Also on topic for today, here’s a link to the 1999 decision in Estate of Martin Luther King v. CBS, reported at 194 F.3d 1211 (11th Cir. 1999). It deals with the copyright status of the famous “I Have a Dream” speech and whether it was in the public domain.

It’s often been said that when Google, Inc. bought the YouTube service, it bought a lawsuit. There have been several, but the biggest one yet was filed on March 13, 2007. There are six counts, the first three are for infringements of the exclusive rights granted to copyright holders, and the remaining three are for various theories of indirect infringement.

The counts are:
Count I - (Direct Copyright Infringement – Public Performance)
Count II - (Direct Copyright Infringement – Public Display)
Count III - (Direct Copyright Infringement – Reproduction)
Count IV - (Inducement of Copyright Infringement)
Count V - (Contributory Copyright Infringement)
Count VI - (Vicarious Copyright Infringement)

This filing is obviously intended as more of a statement; the introduction reads like a brief, not a complaint. The meat of the complaint doesn’t start until Page 5, and even that’s just the jurisdictional statement.

Google/YouTube’s business strategy has been to comply with takedown notices given under the provisions granted under the DMCA, see my discussion of the 100,000 notices that Viacom issued in February here.

While the Defendants can prevail on Counts I, II and III under the Section 230 immunity granted to publishers under theories of direct liability, they could lose on Counts IV through VI, the indirect liability theories.

Paragraph 66 of Count IV alleges “…by their clear expression and other affirmative steps, Defendants are unlawfully fostering copyright infringement by YouTube users.” Loose lips sink ships, like what happened with Grokster. Discovery in the case will certainly be focused on this element, if there is a smoking gun/letter/email out there Viacom can afford to find it.

Count V alleges that Defendants are vicariously liable for the infringement of its users. In particular, it alleges they have actual or constructive knowledge of the infringments, which they then “enable, facilitate, and materially contribute” to. Essentially, Viacom is claiming that the infringement is so widespread, how could the defendants not know it was going on? To be fair, I believe this count is a stretch, as Google has been consistently taking clips down when notified of the infringement.

Count VI alleges that Defendants are vicariously liable because they have both the right and ability to stop the infringement by its users. Paragraph 84 is particularly interesting: “Upon information and belief, YouTube currently engages in practices to enforce content restrictions and protect the copyrighted works of its business partners, but withholds these same protections for the copyrights of persons, including Plaintiffs, who have not granted licenses to YouTube.” If true, it casts doubt on the oft repeated allegations that systems such as those alleged to exist here are impracticable.

We’ll see how this case pans out. I expect to see it fully litigated, not settled, but you never know.

General Media Communications, Inc. v. Crazy Troll, LLC (No. 06 Civ. 40581 LAKFM, Order re: partial summary judgment, January 16, 2007), 2007 WL 102988 (S.D.N.Y.)

Plaintiff, General Media, is the publisher of Penthouse magazine.  At one time, it owned the domain name penthouseboutique.com, but its bankruptcy trustee allowed it to lapse.  General Media still has valid trademark rights in the Penthouse Boutique mark.  Defendant Crazy Troll registered the domain name after it re-entered the general pool of names.  General Media then brought an action under the UDRP to recover the domain name, which it lost, and also was found by the UDRP panel to be guilty of reverse domain name hijacking.  General Media brought the current case under ACPA to recover the domain.  Before the Court is General Media’s motion for partial summary judgment on the count in the complaint where it seeks a declaration that it acted in good faith in bringing the UDRP action.

The Court grants General Media’s motion, noting that the UDRP panelist that found otherwise didn’t have the full facts available to it.  General Media’s claims met the required elements for bringing an action.  It certainly had every reason to believe that Crazy Troll had no rights or legitimate interest in the domain name, and that it was using the name in bad faith.

Reverse domain name hijacking is where a trademark owner brings an action in bad faith against an entity that has been using a domain name in good faith, but has inferior trademark rights to that of the trademark owner.  It is alleged where the trademark owner is using the power of the prior trademark registration to unfairly attempt to take the domain name away from the registrant.

Since Crazy Troll had no right or legitimate interest in the domain when it registered it, General Media brought its action in good faith, and therefore was entitled to summary judgment on its declaratory relief.  Further adjudication will be needed on the remaining counts in the complaint.

Cyberlaw Central Commentary:
Just because a domain name is available for registration, it does not mean that it should be registered.  The Plaintiff here had legitimate trademark rights that were violated when the domain was registered and used by the Defendant.  We’ll see how the remaining counts are dealt with in future opinions, but I agree with this one.

A California man was recently convicted of a “phishing” scam.  Specifically, Mr. Goodin’s conviction is based upon violations of the CAN-SPAM act (15 U.S.C. §§ 7701 et seq.), as well as 10 additional counts, including wire fraud, misuse of the AOL trademark, and attempted witness harassment.

The article here at Mercury News makes a big deal of his conviction under the CAN-SPAM act, as it is the first in the country.  However, it really is notable as a phishing conviction, it’s just that the scheme was operated by sending out spam.  The spam consisted of “phishing” emails that appeared to be coming from AOL’s billing department.  He succeeded in convincing AOL members that they needed to resubmit their billing information at his site that the misleading messages directed users towards.

According to the article, sentencing will be in June.  He faces up to 101 years on all counts. 

Butera & Andrews v. International Business Machines Corporation, 456 F.Supp.2d. 104, (1:06-CV-647, D. of Columbia, Order granting Motion to Dismiss, October 18, 2006.)

Plaintiff Butera & Andrews is a law firm that specializes in federal government relations and litigation. It detected unauthorized intrusions into its computer systems in November of 2005. Security consultants tracked the intrusion to an IP address belonging to Defendant IBM, specifically its Durham, North Carolina facility. Later denial of service attacks were also traced to this facility. Plaintiff then sued IBM and the unknown “John Doe” IBM employee that allegedly carried out these attacks under the Computer Fraud & Abuse Act (18 U.S.C. § § 1030(a)(2) and (a)(5)), the Stored Wire and Electronic Communications Act (18 U.S.C. § § 2701(a) and 2707(a)), and the Federal Wiretap Act (18 U.S.C.A. § § 2511(1)(a)-(b)).

Plaintiff’s claims against IBM were based upon theories of respondeat superior, in that since IBM’s equipment was used in these attacks by an unknown IBM employee the Plaintiff claimed that IBM was therefore responsible. IBM moved to dismiss the complaint on the ground that the Plaintiff never alleged any *intentional acts* by IBM itself, which is a required element in all of the above-referenced statutes. The Court agreed, dismissing IBM from the case.

In dealing with the respondeat superior argument, the Court noted that an employer is not liable for an employees’ intentional conduct solely due to the employer-employee relationship. A plaintiff has to allege more in order to succeed on such a claim, such as some benefit received by the employer. Since Butera & Andrews could not do that here, it was proper to dismiss the claims against the employer, IBM.

In the alternative, Plaintiff requested expedited discovery from IBM regarding its involvement in the attacks. The Court held that post-complaint discovery was not appropriate, instead Plaintiff should have requested third-party discovery from IBM before naming it as a party.

A status hearing was to be held on December 20, 2006 regarding the status of Butera & Andrews’ claims against the John Doe defendant.

Cyberlaw Central Commentary:
I agree with the court’s decision. Third party discovery can be conducted fairly easily, even before filing a complaint under appropriate circumstances. A discovery suit could have been filed requesting the turnover of IBM’s records relating to the specific IP addresses enumerated in the complaint.

Northwest Airlines, Inc. v. Bauer; 06 CV 086, D. North Dakota. Order granting temporary restraining order, December 15, 2006.

Plaintiff is Northwest Airlines, the 5th largest U.S. air carrier with a family of NORTHWEST marks. It offered special coupons called E-Certificates as a courtesy to passengers who suffer from delays or other service interruptions. The coupons at issue in the case were not intended to be sold, but could be transferred without cost. Recently, Northwest has reduced the availability and effectiveness of these coupons due to the actions of Defendant Bauer and those operating similar businesses.

Defendant Bauer operates a website at the domain northwestdiscountcoupons.com where these e-certifcates can be purchased.

Northwest brought a case against Bauer alleging trademark infringement, dilution, and cyber squatting due to the operation of the above-referenced site by Bauer, as well as allegations of unlawful trade practices, deceit, conversion, and interference with business arising under the laws of North Dakota. Before the court was Northwest’s motion for a temporary restraining order.

The court ruled that Northwest was likely to succeed on the merits of its trademark infringement claims and granted the TRO. Since Bauer’s website contains the word NORTHWEST, it believed that consumers were likely to believe Bauer’s site was somehow authorized or endorsed by Northwest. Bauer was scheduled to appear on January 2, 2007 for a preliminary injunction hearing to show cause why the TRO should not extend for the life of the case.

Cyberlaw Central Commentary:
I believe the TRO should not have been issued. The court has placed too much emphasis on the fact that the website in question contains the word NORTHWEST. While Northwest could still win at trial, I believe the additional elements of the domain name, DISCOUNTCOUPONS, should have been sufficient for consumers to not be confused. The discount coupons are from Northwest, so Bauer should be able to argue nominative fair use of Northwest’s trademark in the domain name. We shall see how the preliminary injunction hearing goes before reserving judgment on the remainder of the case.

I’ve been following the recent case here in the Northern District of Illinois where Craigslist was sued for publishing housing advertisements that allegedly violated the Fair Housing Act.  A decision by Judge St. Eve holds that Craigslist is a provider of an interactive computer service under 47 USC 230(c)(1), and that as such it is entitled to immunity as an information content provider.  Craigslist was then granted judgment on the pleadings.

For a more detailed summary of the case, check out Richard Balough’s summary here, along with a link to the decision.

Chicago Lawyers’ Committee for Civil Rights Under the Law, Inc. v. Craigslist, Inc., Northern District Illinois, Eastern Division, Case No. 06 C 0657, decided November 14, 2006.

Here’s a case destined to be a Supreme Court case within the year. Today, Judge Anna Diggs Taylor of the Eastern District of Michigan ruled that the NSA’s domestic wiretapping and Internet surveillance program violates the First and Fourth Amendments and the doctrine of separation of powers. An appeal has reportedly already been filed. Stay tuned.  American Civil Liberties Union et al. v. National Security Agency, et al., Case No. 06 CV 10204, Decided August 17, 2006.

The Program
President Bush has admitted in a radio address to the nation that in the wake of September 11th he instituted a program by his order that authorized the National Security Agency (”NSA”) to institute a surveillance program. This program was authorized to intercept telephone and Internet communications of individuals, both domestically and internationally, that are suspected of ties to Al Quaeda. No warrants or other other judicial approval were ever obtained. A secret presidential order authorized the program in 2002, and the White House admits that it has been extended over thirty times.

The Plaintiffs
Plaintiffs are a group of American citizens whose professions require contact with individuals living in the Middle East, such as professors, journalists and lawyers. These persons have suffered harm in that these individuals have refused to correspond with the plaintiffs because of this program, requiring expensive and time consuming trips to the Middle East in order to conduct their legitimate business.

The Defendants
Defendants include the NSA and the Central Security Service,as well as the individual that serves as the head of both agencies.

The Motions
Before the court were the government’s Motion to Dismiss based upon the theory of privilege preventing the disclosure of state secrets, as well as the Plaintiffs’ motion for partial summary judgment. It was partial because the complaint also addressed some data mining activities performed by the NSA on the information uncovered during the program that even the Plaintiffs conceded were likely protected by the state secrets privilege.

The Decision
Judge Taylor ruled that the state secrets privilege does not bar the action because it has
already made enough details about the program public to make it clear that the program violates the federal laws governing surveillance as well as the First (free speech) and Fourth (freedom from unreasonable search and seizure) amendments to the Constitution.

Standing
The government argued that the Plaintiffs did not have standing to bring the action because they only had a fear of being subject to the spying program and could not allege actual harm. Plaintiffs argued they did have standing because of the concrete harm to their professional activities. The court agreed, noting that there are many cases which hold that substantial burdens placed upon a plaintiff’s professional activities are sufficient for there to be standing.

Current Legislation
The Foreign Intelligence Surveillance Act (”FISA”), instituted in 1978, requires the Government to obtain a warrant before any domestic surveillance, while under certain exigent circumstances still allowing the Government the ability to conduct surveillance before obtaining a warrant provided that one is obtained within 15 days. Further, no program with domestic surveillance can continue for longer than 90 days before stopping. It was carefuly balanced to allow surveillance while still protecting the privacy of U.S. citizens.

Authorization for Presidential Actions
The Government argues that the Authorization for the Use of Military Force (”AUMF”), enacted seven days after the September 11, 2001 attacks on the World Trade Center, provides the authorization needed for the President’s order enacting the spying program which circumvents the FISA requirements. However, the act allows for the use of military force and does not explicitly cover intelligence. Even accepting the government’s argument that intelligence actions are implied, the court notes that it still would not allow a domestic surveillance program to continue for five years instead of the 90 days allowed for by FISA. Further, it would not authorize a program that has never requested a warrant in five years, far in excess of the 15 days required by FISA for the government to obtain a warrant.

The Rationale
Judge Taylor held that the Plaintiffs were entitled to summary judgment on its claims that the domestic surveillance program violated the First and Fourth Amendments, as well as the separation of powers doctrine and existing Federal law. She notes that even the when the Supreme Court recently examined the Government’s actions under the AUMF in enemy combatants being held in the HAMIDI decision, it held that the detainees are still entitled to their Fifth Amendment rights. Accordingly, if the AUMF does not trump the Fifth amendment, it should also not trump the First and Fourth amendment rights of U.S. citizens.

My Thoughts
I believe this case is guaranteed to be before the Supreme Court within the year. I am
unsure whether the court’s justification for the separation of powers doctrine will survive an appeal, but the first and fourth amendment violations appear clear. It’s worth noting that we cannot lose sight of our constitutional rights even when we want to fight terrorism, or else we’re no better than them. While it would have been burdensome to follow the letter of the law, requiring a warrant for each and every individual covered by the program, but in today’s world of automated form generation it certainly was not impossible for some clerk to just mail merge a list of suspects with a form warrant. Accordingly, I do not buy the burden argument.

• Today was my first day back at work after two weeks off.  My excuse? Parental leave after the birth of my third son.  Mother and baby are doing fine.  So are his older brothers.
• I was pleased to see that Blawg Review #70 was posted on Monday by Dave! Gulbransen.  I had the pleasure of meeting Dave! last fall at the BlawgThink conference.  He’s been on my blogroll ever since.  What a great job he did here, be sure to check it out. 
• The most interesting case I kept up with over the last few weeks is the 9th Circuit’s decision in United States v. Hill, a 4th amendment search and seizure case involving computers.  Orin Kerr posted a great summary of the decision at his personal blog.