Why I Oppose the Stop Online Piracy Act (SOPA)/E-PARASITES Act

Eric Goldman has a great summary of the bill and its problems. Well recommended reading.

At Web Censorship Hearing, Congress Guns for “Pro-Pirate” Google

Nate Anderson at Ars Technica had a good summary of the SOPA testimony before Congress.

In other news:

RIAA Wants ReDigi Out Of The Business of Selling “Used” iTunes Tracks

This was the most interesting new application of the First Sale doctrine in copyright this week. As I understand the business sells a copy and not the actually sold iTunes track, this one may not turn out in ReDigi’s favor. This dispute will be worth watching.

Vint Cerf: The Government Is Going Overboard in Internet Copyright Control

On November 14th, Vint Cerf spoke to the Atmosphere conference:

“He told the audience, “Remember, governance is a big word that includes human rights, freedom of speech, economic transactions on a worldwide basis — it touches everything. It’s everywhere, and that’s why Internet governance is topic A in many corners.”

PhoneDog v. Kravitz

This lawsuit over corporate Twitter followers as “property” is quite interesting. Kravitz left PhoneDog with 17,000 followers, and instead of turning over the account he changed the name from “Phonedog_Noah” to his personal name. On a Motion to Dismiss, the Court (Northern District of California) decided to deny Kravitz’s motion. Well worth reading.

Judge Rules Feds Can Have WikiLeaks Associates’ Twitter Data

On November 10th, Judge O’Grady of the Eastern District of Virgina ruled that government prosecutors can have access to information about three Wikileaks supporters’ Twitter accounts – not the content, but the metadata. This decision has been criticized by the EFF.

Finally, I’d like to note that if people are interested in my firm’s IP Webinar series, the next webinar I’m presenting will be on December 7, 2011 on “Online Works: Copyright Registration and Enforcement.” For more information, follow this link.

SOPA and other @Cyberlaw Links is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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The bare minimum the judge could award for violation of the DMCA’s trafficking provision, §1201(a)(2), was $200 per infringement, and the plaintiffs were able to prove that there were 1,074,093 infringements. Accordingly, the court awarded $214,898,600. Further, the plaintiff can seek its attorneys fees as well.

For more on the case, and to download a copy of the decision, visit Satscams.com.

Court awards $214 Million for DMCA Circumvention is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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For those seeking more information, the EFF has a great page of subpoena defense resources available here.

“John Doe” Filesharing Lawsuits is a post from: Cyberlaw Central

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The complaint is interesting reading, it can be found here in PDF.

The ACLU’s press release had this interesting paragraph, explaining the rationale for the suit:

“We are not saying that the government can never search or seize electronic devices at the border, but only that border agents should have some suspicion that the search will turn up evidence of wrongdoing before looking through all the private information that people have stored in their devices. Americans travel internationally more than in the past, and usually with private information and intimate details of our lives condensed in small, electronic devices. We hope that the court will recognize that Americans don’t give up their right to privacy at the border, and strike down the DHS’s policy as unconstitutional.”

This should be an interesting case to track.

ACLU challenges Suspicionless Laptop Border Searches is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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The webcast will be from 12:00 to 1:00 CST, and is accredited for one hour of CLE in Illinois. Many thanks to IICLE for asking me to speak.

From the webcast announcement:
The case of Viacom v. Google made international headlines when it was filed for the size of the damages requested and the interest in parsing the technological and copyright issues. The case is making headlines again as the district court recently ruled that Google is protected under the safe harbor provisions of §512(c) of the Digital Millennium Copyright Act and granted summary judgment in its favor.

Kevin Thompson of Davis McGrath LLC, and author of the legal blog Cyberlaw Central, discusses
* how the judge came to this decision
* the legislative history of the relevant DMCA section as well as the precedential cases
* the future ramifications of this decision and the potentially appealable issues

Register for IICLE webcast – 8/23/2010 – Viacom v. Google is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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As background, in Federal court Judges can summarily hold people to be in criminal contempt of court if their conduct causes an obstruction of justice. If all of the facts required to make this determination are known to the Judge because they occur in his presence, then the Judge can summarily hold a person in contempt. This summary procedure is a great power, and is needed to allow Judges to control what occurs in their courtroom. But, as the 7th Circuit points out, it is a limited power in order to prevent abuse. If additional facts are needed, a more formal evidentiary proceeding is required under 18 U.S.C. §401 and Fed. R. Crim. P. §42(a). This evidentiary proceeding can also encompass conduct that is outside the Judge’s immediate presence but “so near thereto” as to still obstruct justice.

To summarize the basic facts, Defendant Trudeau was before Judge Holderman here in the Northern District of Illinois in an underlying case for civil contempt of court. Trudeau went on his radio show and urged his followers/supporters/listeners to send emails directly to Judge Holderman’s private email address in support of his case. Trudeau also posted an audio excerpt of this show to his website, then sent an email blast to his mailing list urging people to send emails to the Judge. Judge Holderman was concerned as a matter of courtroom security when he suddenly began getting hundreds of emails on his private email address. He was eventually able to determine that Trudeau was to blame, but it took a while for him and his staff to do so. To cut a long story short, he summarily found Trudeau in contempt of court for this behavior because the emails occurred in his presence, then one week later imposed a 30-day sentence.

The 7th Circuit reversed this finding, holding that this procedure was not appropriate because all of the facts did not occur in the Judge’s presence. Instead of the summary procedure, a more formal hearing should have been held. Judge Holderman was able to learn what he needed to know, but the entirety of the conduct did not occur in his presence. It was not enough that the effect of the conduct (the email) was felt in his presence, he and his staff had to take additional steps to confirm it was Trudeau to blame. The radio show itself was not in his presence. Neither was the posting to Trudeau’s website or the mailing to the list.

The case was remanded for further proceedings, so there is still an opportunity for a formal hearing to be held about this conduct, at Judge Holderman’s discretion.

FTC v. Trudeau – Are Emails Within a Judge’s “Presence”? is a post from: Cyberlaw Central

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§ 505. Remedies for infringement: Costs and attorney’s fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

This grant of attorneys fees is not automatic, instead a court must determine whether the grant of fees is reasonable.

In the recent case of UMG Recordings, Inc. v. Veoh, 2010 WL 1407316 (C.D.Cal., April 6, 2010), the video sharing site Veoh sought recovery of its attorneys fees after it had prevailed in its defense of the copyright claims brought by the copyright owners UMG. Veoh had been granted partial summary judgment on the grounds of its meeting all the requirements for 512(c) safe harbor immunity. Despite prevailing, in this recent ruling the Court held that Veoh was not entitled to the recovery of its fees because Veoh could not prove that “UMG’s legal challenge was improper, in bad faith, or contrary to the purposes of the Copyright Act.”

Here’s the important section discussing this holding from this short opinion:

Giving full consideration to the purposes of the Copyright Act, the Court concludes that Veoh is not entitled to recover attorneys’ fees. “[T]here is typically no award of fees in cases involving issues of first impression or advancing claims that were neither frivolous nor objectively unreasonable.” 4 Nimmer on Copyright § 14.10. Both Veoh and UMG advanced positions that were neither frivolous nor objectively unreasonable.

I understand that Veoh was recently acquired by Qlipso.

Awarding of Attorneys Fees for Copyright Cases Not Automatic is a post from: Cyberlaw Central

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In order to have standing to bring a case, however, a private plaintiff must first prove that he or she is the provider of an internet access service, and must have been adversely affected by a violation of the Act. An Internet access service is defined in Section 7702(11) and 47 U.S.C. 231(e)(4) as “a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.”

A recent decision of the District Court of the Western District of Washington, Haselton v. Quicken Loans, Inc, (2010 WL 1180353, March 23, 2010) is informative on this issue. Plaintiff Haselton hosts hosts websites and provides programs that allow Internet users to circmumvent Internet blocking software and access blocked Internet content. The decision does not elaborate greatly on the Defendants’ business, but suffice it to say it involves sending unsolicited email messages.

The court relied on a 9th Circuit decision from 2009 (Gordon v. Virtumundo, Inc., 575 F.3d 1040, 9th Cir. 2009) which also dealt with the standing issue. The Act is intended to provide only a limited cause of action to a limited array of potential plaintiffs.

In Gordon, the Plaintiff did not control the hardware and relied on a third party for his internet access. Further, Gordon had purposefully avoided using even minimal efforts to reduce the level of spam messages. In this case, the Court found that Haselton had only a “nominal role” in providing Internet access services, and further made no effort to prevent the reception of spam emails. So, this Court held Haselton was not the provider of a bona fide Internet access service.

The Court also held that Haselton did not have standing because he was not adversely affected by a violation of the Act. While Haselton claimed reduced system performance and increased server costs, the fact that he had not taken any effort to implement a spam filter cut against any such complaints. As a result, the Court entered partial summary judgment for Defendants on the issue of the CAN-SPAM act due to this lack of standing. I understand that Plaintiff’s claims under Washington state law will still proceed.

Standing under the CAN-SPAM Act is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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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]

Looking forward to Techshow 2008! is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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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.

A special MLK Day Blawg Review is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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