November 20, 2005 Podcasts

InternetCases.com Podcast — November 20, 2005

Cindy Cohn Part II

This edition of the InternetCases.com Podcast is Part 2 of the audio from a talk given by Cindy Cohn, the legal director and general counsel for the Electronic Frontier Foundation. Ms. Cohn spoke to a meeting of the Internet Law Committee of the Intellectual Property Law Association of Chicago (“IPLAC”) on November 4, 2005. Ms. Cohn discussed issues relating to file sharing — in particular, the Grokster decision, as well as actions taken by the entertainment industry against individual file-sharers.

This Part 2 is the question and answer sesssion from the talk.



Download the podcast
Running time: 39:30
File size: 13.5 MB

Music courtesy of Blandy under a Creative Commons license.

If you enjoy listening to the InternetCases.com Podcast, please vote for it at Podcast Alley.

November 9, 2005 Copyright, Podcasts

InternetCases.com Podcast — November 9, 2005

Cindy Cohn Part I

This “special edition” of the InternetCases.com Podcast is the audio from a talk given by Cindy Cohn, the legal director and general counsel for the Electronic Frontier Foundation. Ms. Cohn spoke to a meeting of the Internet Law Committee of the Intellectual Property Law Association of Chicago (“IPLAC”) on November 4, 2005. Ms. Cohn discussed issues relating to file sharing — in particular, the Grokster decision, as well as actions taken by the entertainment industry against individual file-sharers.

The talk is being presented here at InternetCases.com in two parts. This first part is Ms. Cohn’s main talk. The question and answer sesssion (edited for brevity and understandability) will be posted as Part 2 at a later date.

This was a lunchtime meeting, so please excuse the sound in the backgroud of soda cans opening, and other general sounds such as papers rattling, etc.



Download the podcast
Running time: 34:08
File size: 11.7 MB

Music courtesy of Blandy under a Creative Commons license.

If you enjoy listening to the InternetCases.com Podcast, please vote for it at Podcast Alley.

November 8, 2005 Service of Process

Federal court permits service of process on Australian defendants by e-mail

A recent case from the U.S. District Court for the Northern District of West Virginia addresses the novel question of when a plaintiff can obtain service of process over a defendant in another country by e-mail.

Plaintiff Williams sued numerous defendants whom she alleged conspired to defame her. Three of the defendants were residents of Australia, and Williams’s efforts of obtaining service by traditional means were unsuccessful. She petitioned the court to allow her to obtain service by alternate means, including e-mail, pursuant to Fed. R. Civ. P. 4(f)(3). Because Williams had demonstrated her good faith efforts to serve the Australian defendants by traditional means, and because her proposed efforts of service through e-mail were reasonable, the court granted the motion.

The court went through a two-step process to determine that service of process by e-mail would be proper. First, it concluded that given the “particularities and necessities” presented from the near impossibility of serving the evasive defendants, alternate means of service were warranted. The court then “examined the contours” of Rule 4(f)(3) to determine which alternate means would satisfy due process concerns.

Rule 4(f)(3) provides three general means for effecting service of process on defendants outside the United States. Paraphrased, these means are:

  • Any internationally agreed means, such as the Hague Convention
  • Any manner authorized by the laws of the foreign country
  • Any means not prohibited by international agreement and directed by the court

Adopting the standard first applied in the Ninth Circuit decision of Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002), the court held that “Rule 4(f) does not denote any hierarchy or preference of one method of service over another.” Because Australia and the U.S. have no agreement between them regarding service of process, the court was free to consider any means for service reasonably calculated to alert the defendants of the action.

Given that the defendants were “sophisticated participants in e-commerce,” and that plaintiff had established the reliability of e-mail addresses used by the defendants, alternate service by e-mail was permissible. The reliability of service by e-mail was enhanced by Williams’s proposal to use an online service that provided encryption and digital confirmation of delivery.

Williams v. Advertising Sex LLC et al., — F.R.D. —, 2005 WL 2837574 (October 25, 2005).

October 12, 2005 Copyright

Peer-to-peer Litigation Summit planned for Chicago on November 3, 2005

If you’re interested in the legal issues surrounding file-sharing in a post-Grokster world, and will be in Chicago on November 3, be sure to attend the First Annual P2P Litigation Summit scheduled to take place at Northwestern University School of Law. Here’s an announcement from attorney Charles Lee Mudd Jr., one of the event’s primary organizers:

On November 3, 2005, the Electronic Frontier Foundation and I (through my firm Privacy Resolutions P.C.) will co-sponsor the First Annual P2P Litigation Summit in Chicago, Illinois at the Northwestern University School of Law. The daylong conference brings together public and private defense attorneys, clients, investigators, advocates, and academics to discuss the latest developments in peer-to-peer litigation. How do the RIAA and MPAA go about identifying plaintiffs? What are the most effective legal strategies and tactics? Is it better to settle immediately, or fight it out in the courts? How is this impacting the individuals sued? What is the role of ISPs in this quagmire? Should Congress step in and, if so, what legislation is needed? Are there other ways to compensate authors for their works?

A complete agenda and registration information can be found at http://www.p2plitigationsummit.com. Registration is $150.00 per person and $40.00 per person for students.

October 12, 2005 Miscellaneous

Court tosses author’s suit against Amazon.com over negative book reviews

Plaintiff Hammer, a self-published author of books on handwriting analysis and hypnosis, sued Amazon.com, alleging causes of action for defamation, copyright infringement, breach of contract, violation of the First Amendment right to free speech, discriminatory business practices, and conversion. As characterized by the court, the plaintiff essentially claimed that Amazon had unlawfully colluded with an individual who posted several negative reviews of plaintiff’s books. The plaintiff also claimed that Amazon acted unlawfully by removing plaintiff’s books from its listings.

Amazon moved to dismiss the plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6), and the court granted the motion. It held that the allegations of defamation could not stand, as the negative reviews could not be construed as anything other than opinion. The claim of copyright infringement failed because the complaint contained no allegations that Amazon had copied the plaintiff’s work. There could not be any breach of contract, as Amazon was clearly within its rights to terminate its contract with the plaintiff after providing advance notice (which Amazon did). The First Amendment claim failed as a matter of law because Amazon was not a state actor. The discriminatory business practices claim was dismissed because Amazon had the right to independently choose not to do business with the plaintiff. Finally, the court dismissed the conversion claim because the plaintiff had merely re-styled a contract claim, thus that count was preempted.

In addition to dismissing the plaintiff’s complaint in its entirety, the court entered a permanent injunction, enjoining the plaintiff from commencing any subsequent action relating to book reviews on Amazon.com or Amazon’s refusal to do business with him.

Hammer v. Amazon.com, — F.Supp.2d —, 2005 WL 2467046 (E.D.N.Y., Sept. 27, 2005).

October 11, 2005 Defamation, First Amendment, Litigation, Privacy

Delaware decision defines standards for protecting anonymous Internet speech

The recent case of Doe v. Cahill, coming to us from the Supreme Court of Delaware, illustrates a court’s willingness to ensure adequate safeguards to protect anonymous speech on the Internet.

In September of 2004, an anonymous visitor to a Smyrna, Delaware community weblog posted comments about city councilman Patrick Cahill, which Cahill believed to be damaging to his reputation. Cahill filed a defamation lawsuit. Because he did not know the identity of the anonymous commenter, he filed suit against “John Doe,” and began procedures under Delaware law to discover Doe’s true identity. Cahill learned that Doe used Comcast as an Internet service provider, and obtained a court order requiring Comcast to disclose Doe’s real name.

As required by the federal Cable Communications Policy Act of 1984, at 47 U.S.C. §551(c)(2), Comcast notified Doe of the request for information about his identity. [More on the Cable Communications Policy Act.] In response, Doe sought an emergency protective order to bar Comcast from turning over his information. The trial court denied Doe’s request for a protective order, and held that Cahill could obtain Doe’s identity from Comcast. Doe appealed directly to the Delaware Supreme Court. On appeal, the Court reversed the lower court’s decision.

The Supreme Court determined that the trial court had applied too low a standard in testing whether Comcast should be ordered to turn over Doe’s identity. The trial court had applied a “good faith” standard, namely, that disclosure was warranted because Cahill had established through his pleadings that he had a legitimate, good faith basis on which to bring the defamation claim.

The Supreme Court held that such a low standard was not sufficient to protect one’s right to speak anonymously. The lower, good faith standard might encourage meritless lawsuits brought merely to uncover the identities of anonymous critics. Accordingly, the Supreme Court adopted a standard “that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.”

The Court held that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process, he must come forth with facts sufficient to defeat a summary judgment motion. Said another way, before a Delaware court will order an anonymous speaker to be unmasked, the plaintiff has to present evidence creating a genuine issue of material fact for each element of the defamation claim.

Applying that standard to the present case, the court held that “no reasonable person could have interpreted [Doe’s] statements to be anything other than opinion.” The court observed that its conclusion was supported by the “unreliable nature of assertions posted in chat rooms and on blogs.” The case was dismissed.

Doe v. Cahill, — A.2d —, 2005 WL 2455266 (Del., October 5, 2005).
[Full text of decision in PDF]

October 3, 2005 Miscellaneous

Harriet Miers on the law and technology

I’ll leave it to the likes of Chuck Schumer, Ted Kennedy and Russ Feingold to complain incessantly over the next few weeks about not knowing enough about Harriet Miers, President Bush’s most recent nominee to the Supreme Court.

A look over the cases in which Miers has been involved as an attorney is scant on the topic of the law as it relates to technology. However, a quick search reveals that Miers and her Dallas firm Locke Liddel & Sapp have represented such heavyweights as Microsoft and RealNetworks. Notable decisions in cases where Miers was among the counsel of record include:

Microsoft Corp. v. Manning, 914 S.W.2d 602 (Tex.App. 1995) – Microsoft lost an appeal of the lower court’s grant of class certification in an action alleging breach of warranty, unjust enrichment, violations of the Magnuson-Moss Act, and violations of the Washington Consumer Protection Act. The underlying action dealt with issues surrounding disk compression technology embodied in Microsoft’s 1993 release of MS-DOS 6.0.

Shaw v. Broadcast.com, Inc. 2005 WL 2095770 (N.D. Tex., August 30, 2005) – Defendants Broadcast.com, Inc., Realnetworks, Inc. and Microsoft (represented by, among others, Miers) were awarded summary judgment in a patent infringement lawsuit brought by owners of a patent dealing with efficient transmission of streaming media.

October 3, 2005 Defamation

Add another word to the lexicon of non-defamatory terms: “dud”

This past spring the California Court of Appeal provided an entertaining holding in the case of Vogel v. Felice, letting the world know that the term “dumb ass” is not a defamatory term. [More on the Vogel case.]

Now the Court of Appeals of Michigan continues the effort of building a lexicon of non-defamatory terms with its decision in the case of Hatfield v. Riley. From this case we learn that calling someone a “dud” is apparently okay in the state of Michigan.

Plaintiff Hatfield, a special education teacher, filed suit against defendant Riley after she learned that Riley posted an article on his website that referred to various “DUD teachers.” The lower court threw out Hatfield’s lawsuit on summary judgment. The appellate court affirmed.

As in Vogel, the Michigan court focused on the inability of proving the veracity of the alleged defamatory term. The court concluded that the truth of “dudness” remained inscrutable:

“[D]efendant’s statement regarding plaintiff was not provable as false and was merely a subjective opinion. . . . A question whether someone is a “DUD” teacher is necessarily subjective and not provable as false. In cases where statements reasonably cannot be interpreted as stating actual facts about an individual, those statements are protected under the First Amendment.”

Hatfield v. Riley, 2005 WL 2401628 (Mich.App., September 29, 2005) (Not selected for official publication).

September 28, 2005 Electronic Discovery, Privacy

Florida appellate court issues ruling on electronic discovery

Administrative law judge’s discovery order permitting “access to literally everything” on petitioner’s computer did not adequately protect against disclosure of confidential and privileged information.

After being suspended from his job as a school teacher, petitioner Menke was placed under investigation for alleged misconduct. In a formal proceeding against Menke before Florida’s Division of Administrative Hearings, the school board sought discovery of all of the computers in Menke’s household. The board requested that its retained computer expert be allowed to inspect Menke’s computers in a laboratory, so that it could search for improper instant messages.

Menke objected to the discovery request on the grounds that such a wholesale inspection of his computers would violate his Fifth Amendment right and his right of privacy, and would reveal privileged communications with his wife, attorneys, accountants, clergy, or doctors.

Over Menke’s objections, the administrative law judge granted the motion to compel production of the computers for inspection. Menke sought review with the Florida appellate court, which quashed the discovery order.

The appellate court looked to the only other Florida appellate court decision relating to electronic discovery, Strasser v. Yalamanchi, 669 So.2d 1142 (Fla.App.1996), noting that the relevant rules of procedure were broad enough to encompass requests to examine computer hard drives, but only in limited and strictly controlled circumstances. The court concluded that permitting unlimited access to everything on a computer would constitute irreparable harm, because it would expose confidential and privileged information to the opposing party.

The court continued by noting that in cases where there is a need for access to electronically stored information, searching for such data should first be done by the party responding to the discovery request, unless there is evidence of data destruction designed to prevent the discovery of relevant evidence.

In this case, there was no evidence of any destruction of evidence or thwarting of discovery. The court sent the matter back to the administrative body, allowing the school board to request that Menke produce relevant, non-privileged, information. In the court’s words, Menke was not required to provide unfettered access to the entire “electronic filing cabinet” that was his computers.

Menke v. Broward County School Bd., — So.2d —-, 2005 WL 2373923 (Fla.App., Sep 28, 2005).

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