Caselaw Archive
- A California court rejects claims by people running rumor web sites devoted to following Apple computer products that they are journalists protected from complying with discovery subpoena by the First Amendment and California's shield law. The court ordered the defendants to reveal their confidential sources to Apple in this trade secret litigation.
http://news.findlaw.com/hdocs/docs/apple/appledoe31105opn.pdf
- The Plame Leak Investigation: Federal appeals court ruled that New York Times reporter Judith Miller and Time reporter Matthew Cooper lack First Amendment privilege to prevent them from testifying before a federal grand jury about their confidential sources in the investigation over an apparent leak within the Bush administration over former covert CIA agent Valerie Plame's identity. [pdf]
Background Materials
- The Florida Appeals Court, Fifth District ruled that it was illegal for a wife to install spyware on her husband's computer to secretly record evidence of an extramarital affair; as it violated Florida's wiretapping law. The court also barred the wife from revealing the contents of the intercepted conversations at the happy couple's divorce proceedings. [via]
- Palm Bay Imports v. Veuve Clicquot Ponsardin, No. 04-4042 (Fed Cir. February 09, 2005): Esteemed Trademark blogger John L. Welch, of the TTABlog, points out that "opposer's proof of the fame of its marks under the fifth duPont factor included 'several WIPO domain name arbitration decisions' that had found Opposer's marks to be famous. Although WIPO examined the fame of the marks on a worldwide basis rather than in the USA only, 'the Board properly noted that such evidence nonetheless provided a 'confirmatory context' for [Opposer's] other evidence of fame.' So one could say that findings in a UDRP decision may have relevance in a TTAB proceeding. I believe this is a first such ruling."
If you're interested in the more trademark related issues in this case be sure to read John's discussion of the decision here: CAFC Clarifies duPont Fame Test In Affirming TTAB's "VEUVE ROYALE" Decision
- BMG Music et al. v. Gonzalez: Northern District of Illinois granted summary judgment in a file sharing suit against an individual file sharer accused of downloading 30 songs. The court rejected fair use and innocent infringer defences.
Gonzalez asserts that the "fair use" defense applies because she: (1) was just "sampling" the songs to determine if she wanted to purchase them; (2) already owned [*3] many of the songs she downloaded; and (3) did not cause any financial harm by downloading 30 songs. These contentions are without merit. First, the Ninth Circuit in A&M Records, Inc., 239 F.3d at 1014-19, rejected the argument that "sampling" by direct infringers is a "fair use." Second, the contention that Gonzalez already owned some of the recordings she downloaded is not relevant because the Recording Companies only seek redress for songs that Gonzalez admits she did not own.
Under section 402(d), however, the "innocent" infringement defense is not applicable "if a notice of copyright in the form and position specified by this section appears on the published [recordings] to which [the infringer] had access." (Emphasis added.) While it is undisputed that the copyrights of 30 songs at issue were properly noticed on the covers of CDs, Gonzalez contends that she has raised a question of fact as to whether she had access to the notice. Although it is true that Gonzalez did not have actual possession of these CDs, section 402(d) does not require proof that the infringer had "actual possession." 2 Nimmer on Copyright, §7.02[C][3], at 7-17 n.25 (2004). Instead, the plaintiff need only show that the CDs with notice "were in circulation [and] available" to the infringer. Id.
- Coca-Cola Co. v. Purdy: The final factor considers whether the degree of purchaser care can eliminate any likelihood of confusion which would otherwise exist between the products. Several courts have noted that the quick and effortless nature of "surfing" the Internet makes it unlikely that consumers can avoid confusion through the exercise of due care: "In the internet context, in particular, entering a website takes little effort - usually one click from a linked site or a search engine's list; thus, Web surfers are more likely to be confused as to the ownership of a web site than traditional patrons of a brick-and-mortar store would be of a store's ownership."
see also: search engine ad confusion
- Edelson v. Ch'ien: Northern District of Illinois held that the mere presence of e-mail links on a web site is insufficient to confer personal jurisdiction absent evidence of a more tangible interaction with the forum. The site is merely "passive" under Zippo because it simply made information about the company available.
see also: internet jurisdiction in NJ [pdf] [via]
- Donato v. Moldow: New Jersey Superior Court, Appellate Division has held that Section 230 of the Communications Decency Act immunized the proprietor of an online message board from liability for allegedly defamatory content posted by third-parties, despite the exercise of editorial control in the selection and editing of the messages.
Defendant Stephen Moldow established the website, "Eye on Emerson," in late 1999. He posted information about local government activities and local elected officials. The site included a discussion forum, in which any user could post messages, either with attribution or anonymously. The contents of the discussion board included objectionable and arguably false, defamatory and harassing messages. Plaintiffs then sued Moldow for defamation.
This matter is now on appeal from trial court, who dismissed the action, finding that Moldow was immune from liability under a provision in the Communications Decency Act of 1996, 47 U.S.C.A. § 230, and granted Moldow's motion to dismiss the complaint against him for failure to state a claim upon which relief can be granted
Section 230 provides that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C.A. § 230(c)(1).
The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.
see also: Batzel v. Smith; Roskowski v. Corvallis Police Officers' Association
- U.S. v. Carmichael: A federal court in Alabama has refused to order a criminal defendant to take down a website he established about his case. While the court ruled that it had the power to issue the order, it declined to do so on free speech grounds as well as due to the defendant's Fifth and Sixth Amendment rights to investigate his case by using the website togather evidence.
related case: California Court of Appeal has ordered the disclosure of the identity of an individual that allegedly posted defamatory content online.
- DirecTV v. Borow (03-cv-2581)(2005): Judge Norgle of the Northern District of Illinois has ruled that DMCA rights of DirecTV have been violated where defendant pirated signal to access copyrighted works owned by third parties.
related: DirecTV Loses Weapon in Piracy Fight
In a setback to DirecTV's fight against satellite piracy, a federal appeals panel on Tuesday ruled that the company cannot sue people under a wiretapping law just because they possess cards allowing them to intercept its signal. The 11th Circuit said that DirecTV must be able to show that the alleged pirate actually used the device. It's the first federal appellate decision on the issue, and thus is controlling law nationally for the time being.see DIRECT TV INC. v. TREWORGY, (11th Cir. 2004) (18 U.S.C. section 2520(a) does not create a private cause of action against a defendant found in illegal possession of equipment used to intercept satellite transmissions in violation of the criminal statute). [6/16/2004]
- In Lamle v. Mattel, Inc., (Fed. Cir. 2005)(Dyk, J.), the court held that an e-mail under the pre-2000 California law is equivalent to a signed written agreement. (For post-2000 e-mails, the same answer is given under the then-effective Uniform Electronic Transactions Act, that "provides that a 'record or signature may not be denied legal effect or unenforceability solely because it is in electronic form.'") The holding is limited to the Federal Circuit's interpretation of California law. Judge Newman dissented.
- IN RE: CHARTER COMMUNICATIONS, INC., No. 03-3802 (8th Cir. 2005) The Digital Millennium Copyright Act, 17 U.S.C. section 512(h), does not permit copyright owners and their representatives to obtain and serve subpoenas on internet service providers (ISP) to obtain personal information about an ISP's subscribers who are alleged to be transmitting copyrighted works via the internet through file sharing programs.
- 17 U.S.C. 506: Any person who infringes a copyright willfully either– (1) for purposes of commercial advantage or private financial gain, or (2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.
- Orin Kerr:
In news relating to the recent First Circuit wiretapping decision in United States v. Councilman [pdf], a coalition of privacy groups including the Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the American Library Association have just filed an amicus brief [pdf] in favor of the goverment's petition for rehearing.
- ASHCROFT v. ACLU, No. 03-218 (U.S.S.C. 2004): The Court upheld a preliminary injunction barring the enforcement of the Child Online Pornography Act, because the statute likely violates the First Amendment. By a 5-4 vote, the U.S. Supreme Court barred enforcement of a 1998 federal law designed to keep internet pornography away from minors because it likely violates constitutional free-speech rights.
see also:
* Sex E-Mails to Minors Not Shielded by First Amendment:
In a victory for child protection advocates and law enforcement, a state appeals court rejected a first-ever constitutional challenge to the Florida Computer Pornography and Child Exploitation Prevention Act of 1986. Monday's unanimous ruling by the 1st District Court of Appeal in Tallahassee holds that the First Amendment to the U.S. Constitution does not protect e-mails intended to lure children into illegal sexual activity.* internet privacy decisions
- Web site owners can rest a little easier following a little-noticed court decision last month that bolsters legal protections against lawsuits arising from the activities of their advertisers. Ramey v. Darkside involved a D.C. area dancer who sued a Web site publisher, alleging they lost their Section 230 immunity, after one if its advertisers used a photo of her without her permission.
- CoStar v. LoopNet (Fourth Circuit 2004): Copyright owner's claims against ISP for direct infringement dismissed, as ISP would have to commit volitional acts to be liable for direct, as opposed to indirect infringement.
- Traditional Cat Ass'n, Inc. v. Gilbreath, (California Appellate, 2004): The single-publication rule applies to defamatory statements published on internet web sites; the rule's one-year statute of limitations bars plaintiffs' defamation cause of action.
- PSINET, INC. v. CHAPMAN, (4th Cir. 2004) In light of current technology, Va. Code Ann. section 18.2-391, which criminalizes the dissemination of material harmful to minors over the internet, violates both the First Amendment and the Commerce Clause.
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