December 7, 2005 Podcasts

InternetCases.com Podcast — December 7, 2005

Legal issues relating to “RSS hijacking”



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This edition of the InternetCases.com Podcast deals with the technological and legal issues relating to the recent phenomenon known as “RSS hijacking” or “podjacking.” I talked with Rick Klau, Vice President of Business Development of Feedburner about what RSS hijacking is, and what can be done about it. I then talked with Chicago attorney Kevin Thompson, who has written about RSS feed hijacking on his weblog Cyberlaw Central, and asked him to comment on the possible legal causes of action a victim of RSS hijacking might have in a potential lawsuit.

Running time: 15 min. 35 sec.
File size: 3.56 MB

Music courtesy of Blandy under a Creative Commons license.

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December 6, 2005 First Amendment

Government funds used to stream video of legislative proceedings support taxpayer standing in Establishment Clause action

The U.S. District Court for the Southern District of Indiana handed down a controversial ruling on November 30, 2005, permanently enjoining the Indiana House of Representatives from beginning its meetings with any form of sectarian prayer. One of the issues in the case was whether the plaintiffs had standing to challenge the legislature’s practice.

As part of its analysis in finding in favor of the plaintiffs on the standing issue, the court observed that the House provided streaming video of each of its meetings over the Internet. This video included the invocation. There were a total of 53 opening prayers in the 2005 session, and each of these was “a few minutes in length.” The cost to stream the video over the Internet during the 2005 session was $1.88 per minute.

The court concluded that the taxpayers who had footed the bill for these costs were allowed to bring the action in federal court. The court stated:

In this case, each of the plaintiffs is an Indiana taxpayer. Indiana tax funds are spent on the House practice of prayer by [among other things] streaming video of the prayers over the Internet. Such expenditures are measurable disbursements of government funds, occasioned solely because of the prayer practice. These expenditures are sufficient to support standing for the plaintiff-taxpayers who object to the practice supported by the expenditures.

Hinrichs v. Bosma, — F.Supp.2d —-, 2005 WL 3263883 (S.D.Ind., November 30, 2005).

December 5, 2005 Miscellaneous

Pennsylvania court ensures that good deed goes unpunished

Record expunged for librarian arrested after selling back copies of National Geographic to buy school computers.

Defendant (whose name I’m withholding in this entry in the event anyone does an Internet search for his name someday), a 24-year-old school librarian, rescued some of his library’s back issues of National Geographic from the trash can and sold them on eBay. He used the proceeds from the sale, along with $300 of his own money, to buy six computers for the school. Despite these generous and creative efforts, the school system complained to the district attorney’s office, and defendant was arrested for library theft.

In return for defendant resigning his position as librarian, the district attorney’s office withdrew the charges. Defendant then filed a motion to have the record of his arrest expunged. After the trial court denied the motion, defendant sought review. On appeal, the court held that the trial court applied the wrong burden of proof on the question of expungement, and that the prosecution failed to show why the arrest record should not be expunged.

The appellate court applied the four factors set out in the Pennsylvania Supreme Court case of Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), to determine that the trial court abused its discretion in not ordering the arrest record expunged. The court commented on defendant’s motives: “Although perhaps hasty and not ‘cleared’ sufficiently through the proper channels, we believe [defendant’s] actions demonstrate the creativity and altruism so vital to our public schools.”

Commonwealth v. [___________], — A.2d —, 2005 WL 3196556 (Pa.Super., November 30, 2005).

December 2, 2005 Cybersquatting

No ACPA claim where only dispute was over payment of royalties

Think about how you would answer this question:

Your friend wants to use your car so that he can do his job of delivering pizza. The two of you work out a deal where he can drive the car, on the condition that at the end of each week he will pay you 5% of the tips he collects from his job. Things go as planned for awhile, with your friend paying the agreed upon percentage. After a few weeks, however, he stops paying.

Would he be authorized to keep using the car?

If you answered “no,” then you may disagree with the reasoning of the U.S. District Court for the Northern District of California in the recent case of Fox v. iVillage.

Plaintiffs, who had previously licensed their trademark to defendants in return for the payment of a 5% royalty rate, filed suit in federal court alleging, among other things, violation of the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. 1125(d). Defendants moved to dismiss for lack of subject matter jurisdiction, and the court granted the motion. It found that the case presented merely “a state law contract dispute, not one involving substantive questions of federal law.”

The court ruled that the only dispute between the parties was over the nonpayment of the agreed-upon royalty. Because defendants had been authorized to use plaintiffs’ trademark, the court held, there could be no bad faith intent to profit from the mark. Accordingly, without a valid claim under the ACPA, there was no federal question, and the court was without subject matter jurisdiction.

Reasonable minds may differ as to whether this holding was correct. Doesn’t it seem that if the royalties weren’t being paid, then the use of the trademark was not, as the court concluded, authorized? In other words, wasn’t payment of royalties a necessary condition of authorization? To bring it under the language of the ACPA, doesn’t it seem like continuing to use a trademark as a domain name without paying for it would be in bad faith? Wouldn’t your friend’s continued use of your car be bad faith on his part?

Fox v. iVillage, 2005 WL 3157413 (N.D. Cal., November 23, 2005).

December 1, 2005 Employment

Tennessee Supreme Court rules on “after-acquired evidence” of Internet misuse by employee

Here’s an interesting employment law question arising from the misuse of Internet access by an employee during work hours:

Employee won’t agree to the terms in a new proposed employment contract offered to him as part of a corporate restructuring. As a result, he is terminated. Under the terms of the original employment agreement, Employer begins paying severance to (the now former) Employee. Sometime after the termination, upon a forensic examination of the Employee’s computer, Employer discovers that Employee had been visiting adult websites while at work. The employment agreement had provided that severance would be paid unless Employee was terminated for “gross misconduct.” Can Employer get out of paying severance to Employee based on this after-acquired evidence of gross misconduct?

The answer, at least in Tennessee, is yes. That state’s supreme court has held that after-acquired evidence of this sort can be a defense to breach of contract so long as the employer can show by a preponderance of the evidence that it would have terminated the employee had it known of the misconduct.

Teter v. Republic Parking System, Inc., —S.W.3d —, 2005 WL 316518 (Tenn., November 29, 2005)

November 29, 2005 Podcasts

InternetCases.com Podcast — November 29, 2005

Panel Discussion of Google Book Search

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This edition of the InternetCases.com Podcast is the audio from a panel discussion held on November 29, 2005 at the John Marshall Law School on the issues surrounding Google Book Search (f/k/a Google Print).

Professor Doris Long moderated the discussion. The first panelist to speak was professor Leslie Reis, who addressed various business issues pertaining to the Google Book Search model. Todd Flaming, a practicing attorney and adjunct professor at John Marshall spoke next on the technology behind the project. I spoke next on the legal issues in the cases filed by the Authors Guild and the American Association of Publishers, focusing mainly on the fair use factors of copyright law. After me was professor David Sorkin, who compared the nature of indexing pages in Google Book Search with the process of indexing regular web pages. The final speaker was Tom Keefe, a reference librarian at the John Marshall Law School library, who gave a librarian’s perspective on how Google Book Search could affect the future of research.

Music courtesy of Blandy under a Creative Commons license.

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November 23, 2005 Copyright

Discussion of Google Book Search at John Marshall Law School on November 29

I will be speaking on a panel addressing the issues in the Google Book Search (f/k/a Google Print) cases at noon on November 29, 2005 at the John Marshall Law School in Chicago. If you’re in the neighborhood, be sure to stop by – it should be an interesting discussion. I’m honored to be on the same panel as professors Leslie Reis and David Sorkin of John Marshall, as well as Bill Keefe from the school’s library staff.

November 23, 2005 Computer Crime

Eighth Circuit affirms conviction in Best Buy e-mail extortion case

Defendant Ray was convicted in the U.S. District Court for the District of Minnesota for extortion, and was sentenced to eighteen months in prison for sending e-mail messages to Best Buy threatening to exploit a breach in its computer security. He appealed his conviction to the Eighth Circuit, arguing, among other things, that the evidence presented by the government was insufficient to show that Ray sent the messages.

The court affirmed the conviction, holding that the evidence supported the verdict. In reaching this conclusion, the court noted that Ray had admitted using his computer to log onto the Internet several times a day, and that three of the e-mail messages sent to Best Buy were traced to the IP address he was using at the very time the extortion messages were sent. Other evidence supported the conclusion that Ray was responsible for the messages.

One of Ray’s further arguments was that the prosecutor improperly argued criminal propensity in her closing argument by pointing out that Ray acquired domain names to which he had no legitimate interest after being notified that such conduct was improper. Without determining whether the prosecutor erred in making this argument, the court concluded that such a comment “was not so offensive that it deprived Ray of a fair trial.”

U.S. v. Ray, — F.3d —, 2005 WL 3110595 (8th Cir., Nov. 22, 2005).

November 22, 2005 Fraud/Misrepresentation

State consumer fraud action unavailable to nonresident website user

Plaintiff Shaw, a U.S. citizen but resident of London, used Hyatt International Corporation’s website to make a reservation for three nights in the Ararat Park Hyatt in Moscow, Russia. On the website, Hyatt quoted Shaw a rate of $502 USD per night. When checking out of the hotel, however, Shaw was charged some 15% more than the quoted price, allegedly because of an inflated exchange rate Hyatt used to convert between dollars and rubles.

Shaw filed suit against Hyatt in federal court in Chicago, alleging two causes of action under Illinois law: (1) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act 815 ILCS 505/1 et seq. (“ICFA”), and (2) common law unjust enrichment. Hyatt moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The court granted the motion and dismissed the complaint.

In dismissing Shaw’s ICFA claim, the court applied the test set forth in the recent Illinois Supreme Court decision of Avery v. State Farm Mut. Auto Ins. Co., 835 N.E.2d 801 (Ill., 2005) which held that a nonresident plaintiff may sue under the ICFA only if the fraudulent transaction occurred “primarily and substantially” within Illinois. In the present case, the court found that:

[T]he overwhelming majority of the circumstances relating to the transaction between Plaintiff and Hyatt concern events outside of Illinois. Even assuming, as the Court must for purposes of a motion to dismiss, that Hyatt’s currency inflation scheme originated in its principal place of business in Illinois, Avery makes clear that this fact alone does not warrant application of the ICFA.

The court went on to dismiss Shaw’s unjust enrichment claim, because the “Terms and Conditions” displayed on the Hyatt website at the time of the reservation were an express agreement between Shaw and Hyatt. Because the specific transaction giving rise to the dispute was governed by an express agreement, the extra-contractual claim for unjust enrichment was unavailable.

Shaw v. Hyatt International Corp. 2005 WL 3088438 (N.D.Ill., November 15, 2005).

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