internetcases – Attorney Evan Brown – Page 59 – The law and emerging technologies

December 28, 2010 Defamation

Seventh Circuit: Website operator does not have to obey injunction in defamation case

Blockowicz v. Williams, No. 10-1167, (7th Cir. December 27, 2010)

Plaintiffs got an injunction that ordered defendants to remove defamatory content from the web that defendants had posted. When the defendants did not comply with the injunction, plaintiffs asked the court to enforce the injunction against Ripoffreport.com, the website on which some of the defamatory content appeared.

The lower court refused to extend the injunction to cover Ripoffreport. Plaintiffs sought review with the Seventh Circuit. On appeal, the court affirmed the refusal to enforce the injunction.

It held that plaintiffs had failed to show that Ripoffreport was in active concert or participation with the defendants. Absent this collaboration, the website was outside the court’s ability to control.

December 15, 2010 Anonymity, Privacy

Publishing child sex abuse victim’s name on the web was not a privacy violation

Doe v. Fankhauser, 2010 WL 4702295 (N.D. Ohio, November 30, 2010)

County clerk immune from law suit over posting court document on government website.

Plaintiff Jane Doe was the victim of physical and sexual abuse when she was a minor. In the criminal case against the perpetrator, Doe’s name was redacted, and she and her family were allegedly assured that her name would not be publicly disclosed. But someone in the county clerk’s website scanned some documents from the criminal case that had Doe’s name in them and posted those electronic documents on the county’s website, making them publicly available.

So Doe sued the county clerk for violation of Doe’s constitutional due process rights and for common law invasion of privacy. The clerk moved to dismiss. The court granted the motion.

The court found that the clerk was protected by judicial immunity. Judges and court personnel who perform judicial and quasi-judicial functions are absolutely immune from suits for damages arising out of the performance of official judicial acts. In this case, the court found that the clerk’s actions in permitting the documents to be scanned and posted required a type of judgment closely related to the judicial process and therefore deserving of immunity.

Interestingly, the court held that the clerk was entitled to immunity from suit regardless of how careless she may have been. There was no loss of immunity merely because a mistake was made and the original document, without redaction, was made available to the public. “Where there is immunity, it applies even in the face of allegations of bad faith, malice, or reckless indifference.”

Makes you feel confident that the government is watching out for your privacy, doesn’t it?

December 9, 2010 Uncategorized

Wikileaks, decentralized distribution, and the lack of meaningful remedies for unauthorized disclosure

Apart from the difficult question of liability — that is, whether Julian Assange should hang for his actions — the decentralized nature of the distribution methods of Wikileaks content gives us a meaningful opportunity to consider the remedies that should be imposed upon an actor like Wikileaks in those cases in which liability should attach. To do this we can set aside for the time being the more essential question of whether Wikileaks is good or bad. (I have come to think that question may be about as answerable as whether God exists or whether abortion is right.)

It is erroneous to think that Wikileaks should be less culpable merely because it does not have the capacity to be blocked. Wikileaks is not just a website with documents hosted on one server. More cleverly, Wikileaks made its content available via the Bittorrent protocol, which ensures that the information is as widely distributed as possible given today’s reasonably available technology. Attempts to completely block the content would be futile, because so many computers on the network that contain the distributed files (millions?) can work together to ensure that the content remains available.

By seeing to it that the content was available via Bittorrent, Wikileaks knowingly facilitated the decentralized distribution. To say that Wikileaks is not an evildoer because it is without power to undo the harm it caused is an exemplar of the principle behind the old saying that a defendant accused of killing his parents should not be shown leniency because he is now an orphan.

The real relevance of the decentralized distribution and unable-to-block-ness of Wikileaks lies in measuring the culpability for the original act of releasing the information. Here is the central thesis: to the extent generally available methods of information distribution like Bittorrent become further decentralized, the potential for that distribution to have effect becomes correspondingly greater.

Whether this correlation (i.e., greater effect potential in proportion to extent of decentralization) is good or bad depends on the nature of the information being distributed. Obviously, when the released information is harmful, the effect will be bad, and vice versa. A really, really decentralized release of information that, like Wikileaks content cannot be blocked, and which has a harmful effect from being disclosed, causes harm which truly is irreparable. Deleting, returning, or blocking further distribution of the information is impossible.

So what is to be done when harmful information is released in an ultra-distributed, unblockable way? Money damages will rarely do the trick. But what kind of equitable remedy will work? No type of injunction will have any effect in reducing the amount of information that has escaped into the wild, never to be redomesticated in even the slightest sense (since its perpetual propagation is assured through technologies like Bittorrent). How can we meaningfully deal with this problem uniquely occasioned by the digital age? What do you suggest?

December 9, 2010 Anonymity

Court allows early discovery to reveal identity of anonymous libel defendant

[This is a guest post by attorney Caroline Belich. Caroline is a Chicago native, former Michigan State volleyball player, and recent admitee to the California bar with particular interest in the First Amendment.]

Zoosk Inc. v. Does, 2010 WL 5115670 (N.D. Cal. December 9, 2011)

The U.S. District Court for the Northern District of California recently issued an order allowing an internet service provider (ISP) to release an anonymous subscriber’s personal account information. Plaintiff Zoosk is an online social dating network. A Doe defendant created a profile and displayed nude pictures on the site, describing herself as an adult entertainer. After plaintiff permanently blocked the account for violating its terms of use policy, someone set up a Twitter account and posted some allegedly defamatory statements about plaintiff.

After filing a complaint alleging libel per se, Plaintiff asked for leave to take limited early discovery from two ISPs (Comcast and Time Warner Cable) to discover the identity of the Doe defendants. Under the Cable Communications Policy Act, a cable operator may disclose personal identifying information of a subscriber pursuant to a court order authorizing the disclosure. And pursuant to FRCP 26(f), a court may authorize early discovery before the Rule 26(f) conference if the plaintiff shows good cause.

Here the District Court granted the motion, finding that plaintiff showed good cause. First, plaintiff identified the potential Doe defendants with sufficient specificity by determining eight email addresses were using the Twitter account. And plaintiff was able to show how it discovered the emails using publicly-available information. Also, plaintiff’s claims were pleaded with enough particularity to withstand a motion to dismiss. Finally, early discovery was likely to lead to discovery of Doe defendants’ identities so process could be served, because both ISPs had personal information for the eight email addresses involved. As a result, the information these defendant-subscribers provided to Comcast and Time Warner for the sole purpose of using their internet services could also be used to identify them in this defamation claim.

December 7, 2010 Privacy

Credit card receipt shown on computer screen not “printed” for purposes of FACTA

Kelleher v. Eaglerider, Inc., 2010 WL 4684037 (N.D.Ill., Nov. 10 2010)

The Fair and Accurate Credit Transactions Act of 2003 (FACTA) prohibits any “person that accepts credit cards or debit cards for the transaction of business” from “print[ing] more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.” 15 U.S.C. § 1681 c(g)(1). The prohibition applies only to receipts that are “electronically printed.” Id. § 1681 c(g)(2).

Plaintiffs used the web to book reservations to rent motorcycles from defendant. At the end of the reservation process, the plaintiffs allegedly saw on their computer screens their credit cards’ expiration dates. So they sued under FACTA.

Defendant moved for summary judgment. The court granted the motion.

The court looked to the recent Seventh Circuit case of Shlahtichman v. 1-800 Contacts, Inc., which it found to resolve the present dispute. In Shlahtichman, the court considered whether an email confirmation of a purchase, showing the credit card’s expiration date, was “electroncially printed” under FACTA. It answered the question in the negative, finding that “when one refers to a printed receipt, what springs to mind is a tangible document.” FACTA’s language, “as a whole clearly shows that the statute contemplates transactions where receipts are physically printed using electronic point of sale devices like electronic cash registers or dial-up terminals.”

December 4, 2010 Copyright

Another massive porn Bittorrent copyright lawsuit in the Northern District of Illinois

MCGIP, LLC v. Does 1-1,164, No. 10-7675 (N.D.Ill., filed December 2, 2010) [Download Complaint]

Filing of copyright infringement complaint will be precursor to more subpoenas seeking to identify unknown file-sharing defendants.

Another porn company has filed a copyright lawsuit against hundreds of anonymous John Doe defendants who allegedly used the Bittorrent protocol to trade plaintiffs’ copyrighted movies. So ISPs around the country should expect another wave of subpoenas sent to unmask these unknown file sharers. The works allegedly infringed in this case include provocative titles such as “Girlfriend Lost a Bet” and “Iraq Care Package.”

Interestingly, this complaint — unlike the complaints in similar Bittorrent porn copyright cases — contains a paragraph that tries to explain why over a thousand defendants should be joined in one lawsuit:

Joinder is appropriate because, on information and belief, each Defendant was contemporaneously engaged in a coordinated effort with the other Defendants to reproduce and distribute Plaintiff’s copyrighted works to each other and hundreds of third parties via the BitTorrent protocol.

This language appears to be an attempt to head-off arguments like those made by EFF and others in some of the other massive copyright infringement actions against scores of anonymous defendants.

Negligence claim against RIAA fails because there was no physical injury

Andersen v. Atlantic Recording Corp., 2010 WL 4791728 (D.Or. November 18, 2010) [Download complaint]

Tanya Andersen has waged a years-long battle against the record companies after she was sued for copyright infringement for trading music files via a peer-to-peer network. She sued the RIAA and several record companies over a number of claims, including one for negligence, saying that the plaintiffs in the copyright case were negligent by “prosecuting sham litigation against” her and by failing to properly investigate the name of a pseudonymous file sharer.

The RIAA defendants moved for summary judgment on the negligence claim. The court granted the motion.

The court held that Oregon law (under which the negligence claim was brought) does not provide for the type of damages Andersen was seeking. She had claimed damages from emotional distress and physical ailments stemming from defendants’ alleged negligence.

Oregon’s “impact rule,” requires a “physical touching” for there to be emotional distress damages in cases like this. In this case, the actions of the plaintiffs that gave rise to Andersen’s alleged harm were the aggressive and otherwise objectionable tactics in pursuing the copyright litigation. Absent evidence of the required physical impact, her negligence claim failed.

Class action lawsuit challenges Bittorent lawsuit factory’s business model

Well this is interesting. One of the bittorrent copyright defendants who has been ~~victimized~~ targeted by the law firm of Dunlap, Grubb & Weaver, a/k/a the US Copyright Group, has filed a class action lawsuit against the law firm. The complaint [download], filed yesterday (November 24), is 96 pages long, includes 456 paragraphs of allegations, and contains 25 claims for relief. The claims include extortion under the Hobbs Act, common law extortion, conspiracy, violation of the Computer Fraud and Abuse Act, and a slew of fraud claims. Mounting a defense to this gargantuan effort is certainly going to cut into the profit margin that the US Copyright Group should expect from its dubious business model.

Smoked turkey company alleges that competitor infringed copyright in directions

Greenberg Smoked Turkeys, Inc. v. Goode-Cook, Inc., No. 10-621, (Complaint filed November 23, 2010, E.D. Texas) [Download the Complaint]

Happy Thanksgiving. I’m grateful for your continued support and interest in Internet Cases. It truly is a pleasure to write these posts and to get your feedback and engagement. And it’s also a pleasure to bring you news of this ultra-timely new copyright lawsuit.

Greenberg Smoked Turkeys, as you might expect, sells turkeys. Since 1987 it has distributed these turkeys with some simple instructions, comprised of three short paragraphs. You can read these instructions which are embedded in the complaint. It posted these instructions on its website in 2003.

Some time thereafter, Greenberg alleges, its turkey selling competitor copied the instructions and began using the instructions on its own website. Thus this lawsuit.

Infringement claims over instructions can be a tricky endeavor. In copyright law, there’s something called the “merger doctrine.” This relates to the idea-expression dichotomy: ideas are not copyrightable but their expression is. Simple instructions or directions may not pass this threshold: in their simplicity, they may be expressing something in the only possible way. That kind of expression does not rise to the level of copyrightability.