Current events
From Internet Law Treatise
April 2008
e360Insight, LLC v. Comcast Corp.
e360Insight, LLC v. Comcast Corp., 2008 WL 1722142 (N.D.Ill. 2008). Judgment on the pleadings for Comcast.
e360Insight "sends e-mail solicitations and advertisements, for a fee, to millions of e-mail users. ... Comcast, like the federal judiciary and other enterprises, uses filters to control the volume of its e-mail and to block e-mails its users don't want to see." Held:
... section 230 imposes a subjective element into the determination of whether a provider or user is immune from liability. Zango, Inc. v. Kaspersky Lab, Inc., No. 07-0807, slip. op. at 6-7 (W.D.Wash. Aug. 28, 2007) (noting that section 203(c)(2) only requires that the provider subjectively deems the blocked material objectionable); Pallorium v. Jared, 2007 WL 80955, at *7 (Cal.Ct.App. Jan.1, 2007) (same). This standard furthers one of section 230's goals “to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.” § 230(b)(3). Here, there is no question that Comcast, through the use of its numerous programs, software, and technologies, considers the material sent by e360 via e-mail objectionable.
The court was not concerned with whether the e360 was actually sending spam. "Under the law, a mistaken choice to block, if made in good faith, cannot be the basis for liability under federal or state law. To force a provider like Comcast to litigate the question of whether what it blocked was or was not spam would render § 230(c)(2) nearly meaningless."
March 2008
CLC v. Craigslist
Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. craigslist, Inc., 2008 WL 681168 (7th Cir. Mar. 14, 2008). Section 230 protected craigslist against Fair Housing Claim. [1] (http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=07-1101_021.pdf)
Mazur v. eBay
Mazur v. eBay Inc., 2008 WL 618988 (N.D. Cal. March 4, 2008) [2] (http://pub.bna.com/eclr/07cv3967_030408.pdf) Section 230 case distinguishing between representation made by eBay and those based on user feedback.
February 2008
New Section 230 cases
- Global Royalties, Ltd. v. Xcentric Ventures, LLC, 2008 WL 565102 (D. Ariz. Feb. 28, 2008) [3] (http://www.seomoz.org/user_files/pdf/globalroyaltiesfinalmtd.pdf) ("It is obvious that a website entitled Ripoff Report encourages the publication of defamatory content. However, there is no authority for the proposition that this makes the website operator responsible, in whole or in part, for the “creation or development” of every post on the site.")
- Curran v. Amazon.com, Inc., 2008 WL 472433 (S.D. W.Va. Feb. 19, 2008) ("CDA immunity is a question awaiting discovery and exploration, though plaintiff faces an uphill battle given the broad grant of immunity conferred by § 230...")
- Gregerson v. Vilana Financial, Inc., 2008 WL 451060 (D. Minn. Feb. 15, 2008)[4] (http://www.cgstock.com/essays/gregerson_v_vilana_judgment_152.pdf)
- Whitney Information Network, Inc. v. Xcentric Ventures, LLC 2:04-cv-47-FtM-34SPC (M.D. Fl. Feb 15, 2008)[5] (http://onlineliabilityblog.files.wordpress.com/2008/02/https___ecfflmduscourtsgov_cgi-bin_show_temp.pdf). Discussion of 'harassthem.com' dicta in Fair Housing Council of San Fernando Valley v. Roommates.com, 506 F.3d 716 (9th Cir. 2007).
- John Doe Anti-Terrorism Officer v. City of New York, No. 06-cv-13738 (S.D.N.Y. Feb. 6, 2008). [6] (http://www.thelen.com/tlu/JohnDoeVCityofNewYork.pdf) Email forwarding case, holding that " When Tefft attached his own commentary to his listserv, he ceased to be a passive host of third-party information."
Eric Goldman has discussion [7] (http://blog.ericgoldman.org/archives/2008/03/47usc230day.htm) [8] (http://blog.ericgoldman.org/archives/2008/02/cafepress_denie.htm)
Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008) [9] (http://www.courtinfo.ca.gov/opinions/documents/H030767.PDF) Held that "plaintiff [must] make a prima facie showing of the elements of libel in order to overcome a defendant's motion to quash a subpoena seeking his or her identity."
November 2007
In Re Boucher
In In Re Boucher, 2007 WL 4246473 (D.Vermont Nov. 29, 2007), the first opinion to consider the issue, the court held that the Fifth Amendment prevents a judge from ordering a defendant to reveal his passphrase or to decrypt incriminating material.
The defendant entered the United States from Canada. At the border, he was selected for secondary screening. Agents searched his laptop. With the defendant’s assistance, they decrypted a partition containing child pornography. The agents arrested the defendant and seized his laptop. The government then determined that the relevant files were encrypted with PGP and inaccessible to them. The grand jury then subpoenaed the defendant to enter a password to allow access to the files on the computer. The defendant moved to quash the subpoena on the grounds that it violates his Fifth Amendment right against self-incrimination.
The Fifth Amendment “protects a person ... against being incriminated by his own compelled testimonial communications.”
Entering the password is testimonial because it communicates the fact that he knows the password and has control over the relevant files. The government offered the defendant “use immunity”, i.e. that they would not use the fact that defendant knew the password to show he had control over the images. However, the trial court held that United States v. Hubbell, 530 U.S. 27 (2000) rejected this approach. Even if the government does not have to use the act of production as evidence to prove the existence, authenticity or custody of documents, or to prove the charges, the Fifth Amendment prohibits the government from using against the defendant any materials derived from the compelled disclosure.
September 2007
Federal Trade Commission v. Accusearch, Inc., 06-CV-105-D (D. Wy. Sept. 28, 2007) [10] (http://onlineliabilityblog.files.wordpress.com/2007/10/order.pdf) (Section 230)
Murawski v. Pataki, 2007 U.S. Dist. LEXIS 72749 (S.D.N.Y. Sept. 26, 2007).[11] (http://cyberlaw.stanford.edu/packets/200710/yahoo-has-no-obligation-to-publish-information-ask-com-not-liable-for-)
Doe v. Gonzales, 500 F. Supp. 2d 379, 425 (S.D.N.Y. 2007) (NSL statute unconstitutional).
Freecycle v. Oey
Ninth Circuit Court of Appeals upheld the right to engage in open discussion about words companies are trying to trademark, without the fear of being sued by the companies under trademark law.[12] (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/77FC32035139985C882573610078DF4B//0616219.pdf?openelement)
TFN filed a federal trademark application for the term "freecycle." Tim Oey, once involved with TFN, took to the Internet to urge people to oppose TFN's effort to trademark the term, arguing that freecycling should be a grassroots movement. In emails to other TFN moderators and posts to message boards, he argued that the word "freecycle" should remain generic, free for anyone to use as a way to refer to the practice of giving away goods online.
TFN sued for a court injunction prohibiting Oey from expressing his opinions. TFN argued that he had infringed and disparaged their trademark and managed to convince a district court judge in Arizona to grant the injunction. On appeal, however, the Ninth Circuit ruled that Oey's honest opinion about Freecycle's trademark rights could not be stamped out by a claim of trademark infringement under the Lanham Act. First, the decision notes that Oey did not make any commercial use of the alleged "freecycle" mark in his emails and Internet postings. Second, it noted that there was no evidence that his activities were likely to confuse consumers or otherwise mislead the public. And third the Court wrote:
Nor does the [Lanham Act] prevent an individual from expressing an opinion that a mark should be considered generic or from encouraging others to use the mark in its generic sense... TFN’s mere disagreement with Oey’s opinion and frustration with his activities cannot render Oey liable under the Lanham Act.
Mayfield v. United States
Judge Ann Aiken of the Oregon Federal District Court ruled that two provisions of the Foreign Intelligence Surveillance Act (FISA), "50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution."[13] (http://www.ord.uscourts.gov/rulings/04-cv-1427Opinion.pdf)
This case arose over warrantless surveillance of an innocent Oregon attorney who was falsely suspected of involvement with the Madrid train bombing based on a mistaken fingerprint identification. The critical legal issue was that in the Patriot Act, Congress amended FISA to change the language from requiring "the purpose" of the search or surveillance be to obtain foreign intelligence information to only "a significant purpose" of the search or surveillance.
August 2007
Doe v. Sexsearch.com
N.D. Ohio Case 3:07-cv-00604-JZ [14] (http://www.steptoe.com/assets/attachments/3154.pdf). Plaintiff sues SexSearch because he was arrested for sexual relations with a minor, but the website had said she was 18. He had 18 claims for relief. Court held "Plaintiff employed a double-barreled shotgun approach in this case, but failed to hit a claim upon which relief may be granted." Section 230 provided a sucessful defense to seven of the claims.
July 2007
Law Firm Not Liable for Wayback Machine Research
Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, Slip Copy, 2007 WL 2085358, E.D.P.A. (July 20, 2007). In the course of researching trade secret and trademark violation allegations, the defendant-law firm used the Internet Archive's Wayback Machine to retrieve past versions of the plaintiff's website. (The Internet Archive is a nonprofit organization that periodically archives screen shots of websites.) The Wayback Machine normally will not archive sites that present a robot.txt file. Due to a system glitch in the Wayback Machine, however, Harding's attorneys were able to access old versions of the plaintiff's site despite the robot.txt file. The plaintiff sued the law firm for various copyright violations. The court held that displaying and printing screen shots of the site constituted fair use under the Copyright Act. Significantly, the court also held that Harding's use of the Wayback Machine did not violate the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). The court reasoned that no circumvention had occurred because when Harding accessed the pages, the robot.txt file failed through no fault of Harding. Essentially, "They did not 'pick the lock' and avoid or bypass the protective measure, because there was no lock to pick." Id. at *16. Similarly, the court dismissed Computer Fraud and Abuse Act claims because Harding had accessed the site in the ordinary, intended manner. State law claims of trespass and conversion were rejected as preempted by the Copyright Act claims.
Credit Card Companies Off the Hook for Secondary Copyright Infringement
Perfect 10 v. Visa International, __ F.3d __ (9th Circuit, July 3, 2007). 2007 WL 1892885 Perfect 10 claimed that Visa was liable because third-party websites sold infringing photographs (taken from Perfect 10's site) using Visa's credit card services. The court affirmed Visa's motion to dismiss, finding the chain of causation between the copyright infringement and the purchase of the works too tenuous. If Visa were found liable, the majority was concerned that secondary liability could potentially extend to every component related to any transaction where infringing material was bought or sold.
Judge Kozinski dissented, arguing that credit card companies represented an essential part of the infringing transaction. If consumers were unable to use Visa to buy the infringing photos, the infringement would cease. Therefore the credit card companies did "materially contribute" to the infringement.
June 2007
“Bong Hits 4 Jesus,” School-Related Censorship
Morse v. Frederick, ___ S.Ct. ___, 2007 WL 1804317 (2007). phttp://www.supremecourtus.gov/opinions/06pdf/06-278.pdf] The court held that school officials did not violate Frederick’s First Amendment rights by suspending him and confiscating a banner that read “BONG HiTS 4 JESUS” after he displayed the banner at a school-sanctioned and school-supervised event.
This holding was based on the right of schools to “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” As the court’s analysis is based almost entirely upon the school’s sanctioning of the event and the physical proximity of the speech to the school, this would not seem to have much carryover into tech-related cases of student expression, such as students’ speech in off-campus blogs. The Court recognized that this case involved merely a question of “whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.”
School speech. The court held that this was a “school speech case” even though it did not take place within a school because the event at issue occurred during school hours, was a school-approved social event that expressly was governed by student-conduct rules, and was supervised by teachers and administrators. In addition, Frederick stood with other students across the street from the school and directed his banner toward the school and other students.
“Substantially Disrupt.” Under Tinker v. Des Moines, 393 U. S. 503, the “black armbands” case, schools may suppress student expression if school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” The Court found that promotion of illegal drug use met the “substantially disrupt” standard. The Court said that those who viewed Frederick’s banner would interpret it as promoting illegal drug use—particularly considering what the Court felt was a lack of possible alternative meanings—and thus Frederick’s speech was subject to suppression.
Journalist Sues YouTube for Copyright Infringement, Cross-Motions Denied
Tur v. YouTube, No. CV-06-4436 (C.D. Cal.).[15] (http://www.hollywoodreporteresq.com/thresq/photos/Turv.YouTube_order-1.pdf) Journalist Tur sued YouTube for copyright infringement of news videos.
Tur and YouTube filed cross-motions for summary judgment based on 512(c). The court denied both motions. Tur’s motion was denied on the basis that he failed to give an adequate showing that YouTube had the right and ability to control the allegedly infringing activities of its users. YouTube’s motion was denied for essentially the same reason: it argued that Tur’s case was preempted by 512(c) because YouTube did not have the technical capability of pre-screening its content, but the court responded that YouTube had not made a sufficient showing to warrant preemption.
Court Finds 4th Amendment Expectation of Privacy in Remotely Stored E-mail
Warshak v. U.S., ___ F.3d ___, 2007 WL 1730094 (C.A.6 2007). [16] (http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf) The court ruled that "A [government] seizure of e-mails from an ISP, without either a warrant supported by probable cause, notice to the account holder to render the intrusion the functional equivalent of a subpoena, or a showing that the user maintained no expectation of privacy in the e-mail, amounts to" a 4th Amendment violation, even if such a seizure satisfied statutory provisions.
Federal agents had obtained Warshak’s account information and e-mail contents from Warshak’s ISP, pursuant to an order issued under the Stored Communications Act (“the SCA”). The order was not a full “probable cause” warrant under the 4th Amendment. Warshak requested that the government cease searching his e-mail without warrant and notice, but the government declined to do so.
Though the government had complied with the requirements of the SCA, it nonetheless ruled that the government’s actions violated Warshak’s expectation of privacy in his e-mail communications under the 4th Amendment. This expectation of privacy applies equally to e-mails stored with the user and e-mails stored remotely. The government thus would have needed a full “probable cause” warrant to seize Warshak’s e-mails.
No Trespass to Chattels in Domain Names
Universal Tube v. YouTube, Inc., 2007 WL 1655507 (N.D. Ohio 2007).
Plaintiff tube-industry corporation, owner of utube.com, sued YouTube for trademark infringement, trespass to chattels, and other related claims. They alleged that millions Internet users seeking to find YouTube were overloading utube.com’s servers, causing shutdowns and increased bandwidth costs.
The court ruled that trespass to chattels claims require tangible property and thus intangible properties such as domain names are not subject to such claims. It also ruled that YouTube did not trespass on utube.com’s servers because Universal Tube didn’t have sufficient possessory interest in the (third party) servers and it was YouTube’s users, not YouTube itself, that accessed the servers.
Some of Universal Tube’s other claims still are active.
May 2007
Image Search Engine Fair Use
Perfect 10 v. Amazon.com, Google, et a __ F.3d __ (9th Cir. 2007).[17] (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DE8297F56287C0BC882572DC007DACC6/$file/0655405.pdf?openelement) Third-parties analysis: [18] (http://blog.ericgoldman.org/archives/2007/05/ninth_circuit_o_1.htm) [19] (http://blog.ericgoldman.org/archives/2007/05/summary_of_perf.htm) [20] (http://www.eff.org/deeplinks/archives/005259.php)
Display Right: "Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen. ... Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image."
Distribution Right: "Because Google did not communicate the full-size images to the user’s computer, Google did not distribute these images. ... Google’s search engine communicates HTML instructions that tell a user’s browser where to find full-size images on a website publisher’s computer, but Google does not itself distribute copies of the infringing photographs."
Fair Use: "We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case. ... Weighing this significant transformative use against the unproven use of Google’s thumbnails for cell phone downloads, and considering the other fair use factors, all in light of the purpose of copyright, we conclude that Google’s use of Perfect 10’s thumbnails is a fair use."
Contributory Infringement: "... we hold that a computer system operator can be held contributorily liable if it “has actual knowledge that specific infringing material is available using its system,” Napster, 239 F.3d at 1022, and can “take simple measures to prevent further damage” to copyrighted works, Netcom, 907 F. Supp. at 1375, yet continues to provide access to infringing works."
Roommates.com not Immune Under 230
Fair Housing v. Roommates.com, __ F.3d __ (9th Cir. 2007) [21] (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/870C17829A420BDA882572DC0051EC26/$file/0456916.pdf?openelement). Third-party coments [22] (http://blog.ericgoldman.org/archives/2007/05/ninth_circuit_s.htm) [23] (http://lquilter.net/blog/archives/2007/05/15/roommatecom-reversed) [24] (http://www.joegratz.net/archives/2007/05/15/9th-cir-adding-an-additional-layer-of-information-to-user-generated-content-is-not-immunized-by-the-cda/) [25] (http://substantialsimilarity.org/?p=10)
The Ninth Circuit three-way split decision was written by Kozinski, with a partial dissent by Reinhardt, and a partial concurrence by Ikuta.
Summary: The Fair Housing Councils of San Fernando Valley and San Diego (“the Councils”) filed suit in federal district court, claiming that Roommates.com violated the Fair Housing Act (“FHA”) and various state laws. The district court held that the Communications Decency Act barred the Councils’ FHA claim. As a result, the court granted, in part, Roommates’s summary judgment motion and entered judgment in Roommates’s favor on the FHA claim. The district court then declined to exercise supplemental jurisdiction over the state law claims and dismissed them. It also denied Roommate’s motion for attorneys’ fees and costs. The Councils now appeal the dismissal of their FHA claim and Roommates cross-appeals the denial of fees and costs.
On appeal, the 9th Circuit reversed in part, finding that the site was in fact an information content provider. The court remanded to determine whether the site's content violated the FHA.
Summary of District Court Holding: "In other words, if Roommates passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication. But if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity."
Summary of 9th Circuit Holding: Roommates is not a passive publisher of the content; rather, the site had developed questionnaires to elicit potentially discriminatory information from users. The court found that its search mechanism and e-mail notifications meant that it was neither a passive pass-through of information provided by others nor merely a facilitator of expression. The site is therefore an information content provider and is not immune under the publisher provisions of the CDA. The court remanded the case to determine whether the site violated the FHA. In addition, the dismissal of the state law claims was vacated so that the district court could reconsider whether to exercise its supplemental jurisdiction in light of the ruling on the federal claims.
Questions Asked: "Roommates is a content provider of these questionnaires and does not qualify for CDA immunity for their publication."
Carafano Dicta: "Carafano did not consider whether the CDA protected such websites, and we do not read that opinion as granting CDA immunity to those who actively encourage, solicit and profit from the tortious and unlawful communications of others.
While mapping the outer limits of Carafano’s protection of websites that solicit and post users’ responses is an interesting and difficult task, we need not undertake it today."
Open Ended Text Box: "Roommates’s open-ended question suggests no particular information that is to be provided by members; Roommates certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members. Nor does Roommates use the information in the “Additional Comments” section to limit or channel access to listings. Roommates is therefore not “responsible, in whole or in part, for the creation or development of” its users’ answers to the open-ended “Additional Comments” form, and is immune from liability for publishing these responses."
March 2007
PA Clickwrap case
Feldman v. Google (E.D.P.A. March 28, 2007). The court held that online "click-wrap" agreement was enforceable against plaintiff who claimed he had never read the terms at issue because terms were "readily accessible" to him and "clear."
COPA Struck Down Again
ACLU v. Gonzales, No. 98-559 (E.D. Pa. March 22, 2007). On remand, COPA is struck down by the district court.[26] (http://www.paed.uscourts.gov/documents/opinions/07D0346P.pdf)
9th Cir. Holds 230 protects versus state IP claims, construes DMCA
In Perfect 10, Inc. v. CCBill, LLC, 340 F.Supp.2d 1077 (C.D.Cal. 2004), the District Court had initially found that a state law right of publicity was an intellectual property right, and therefore not covered by Section 230. On March 29, the Ninth Circuit reversed, "constru[ing] the term 'intellectual property' to mean 'federal intellectual property.'" Perfect 10, Inc. v. CCBill, LLC, __ F.3d __ (9th Cir. 2007), The Ninth Circuit reasoned that "Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various state-law regimes."
Other analyses (including DMCA Safe Harbor rulings) are here (http://blog.ericgoldman.org/archives/2007/03/ninth_circuit_o.htm) and here (http://lawgeek.typepad.com/lawgeek/2007/03/perfect_10_v_cc.html).
4th Cir Affirms Denial of PI for Blogger TM Use
BidZirk, LLC v. Smith, (Slip Op.), 2007 WL 664302 (4th Cir. March 6, 2007)
February 2007
WD Tex Opinion re 230
In Doe v. MySpace, No. 1:06-cv-00983-SS (W.D. Tex 2007), the Court ruled that Section 230 (47 U.S.C. 230) protected social networking site MySpace from negligence liabilty related to a user who was sexually assualted by another user met online. LA Times, "MySpace cleared in sexual assault case"[27] (http://www.latimes.com/business/la-fi-myspace15feb15,0,7245777.story?coll=la-home-headlines). Opinion [28] (http://www.eff.org/legal/cases/doe_v_myspace/order_motion_granted.pdf).
ED Cal Opinion re Copyright/CFAA/etc.
Therapeutic Research Faculty v. NBTY Inc., No. 2:05-cv-2322-GEB-DAD (E.D. Cal 2007). Plaintiff alleged that NBTY, which only had a single user license to its online publication, “shared the confidential username and passcode among many [of its employees] for two-and-a-half years, thereby infringing on [Plaintiff’s] rights in the Publication.” The Court denied NBTY's motion to dismiss claims of "copyright infringement, contributory copyright infringement, vicarious copyright infringement, violation of the Computer Fraud and Abuse Act (“CFAA”) (under 18 U.S.C. § 1030), violation of Title II of the Electronic Communications Privacy Act (“ECPA”) (under 18 U.S.C. § 2701), violation of the California Comprehensive Data Access and Fraud Act (under section 502 of the California Penal Code), trespass and misappropriation of trade secret." Holding that "allegations regarding pasting of text from the copyrighted work into an email, sending of emails to unauthorized users and improperly accessing the Publication for purposes of preparing FDA notifications, sufficiently alleges a violation of Plaintiff’s exclusive rights to display, reproduce and distribute its work protected by the Copyright Act" (emphasis added). The Court also held that, since a full license for the entire NBTY staff would have cost about $40,000, the shared password was sufficient to state a claim under the CFAA's $5,000 minimum. In addition, the Court wrote that "Plaintiff has adequately alleged that its username and passcode constitute a 'trade secret' under the definition provided in California Civil Code section 3426.1(d)."
January 2007
California Opinion re Section 230 and Anti-Spam
Pallorium v. Jared, G036124 (Cal. Ct. App. Jan. 11, 2007) (unpublished opinion)[29] (http://www.courtinfo.ca.gov/opinions/nonpub/G036124.PDF) Eric Goldman report [30] (http://blog.ericgoldman.org/archives/2007/01/antispammer_win.htm); CNET report [31] (http://news.com.com/2100-1030_3-6151712.html?part=rss&tag=2547-1_3-0-20&subj=news)
New Jersey Opinion re Online Privacy
New Jersey Court of Appeals opinion, State v. Reid, __ A.2d __, 2007 WL 135685 (N.J.Super.A.D., Jan. 22, 2007), upholding right to privacy in ISP information under NJ constitution.[32] (http://www.judiciary.state.nj.us/opinions/a3424-05.pdf)
Colorado case re Copyright
Shell v. Devries, (Slip Op.) No. 06-318, 2007 WL 324592 (D.Colo. Jan. 31, 2007), holding that a copy of a website used in conjunction with a motion was a fair use.
November 2006
California Supreme Court Decision in Barrett Case
The Supreme Court held:[33] (http://www.eff.org/legal/cases/Barrett_v_Rosenthal/ruling.pdf)
We conclude that section 230 prohibits 'distributor' liability for Internet publications. We further hold that section 230(c)(1) immunizes individual 'users' of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use. Accordingly, we reverse the Court of Appeal's judgment. We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.
May 2006
O'Grady v. Superior Court
California Court of Appeals held: "Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order."
It went on to hold that "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."[34] (http://www.eff.org/Censorship/Apple_v_Does/H028579.pdf)
January 2006
En Banc Decision in Yahoo Nazi Memorobilia Case
"An eight-judge majority of the en banc panel holds, as explained in Part II of this opinion, that the district court properly exercised specific personal jurisdiction over defendants LICRA and UEJF under the criteria of Calder. A three-judge plurality of the panel concludes, as explained in Part III of this opinion, that the suit is unripe for decision under the criteria of Abbott Laboratories. When the votes of the three judges who conclude that the suit is unripe are combined with the votes of the three dissenting judges who conclude that there is no personal jurisdiction over LICRA and UEJF, there are six votes to dismiss Yahoo!’s suit." Yahoo, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme [35] (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/3DF703F416DC0608882570F40006DDCF/$file/0117424.pdf?openelement)
November 2005
Report from Hearing on National Security Letters
Today the Second Circuit Court of Appeals heard argument in the case of Doe v. Gonzales, considering whether National Security Letters (NSLs) are unconstitutional. NSLs are secret subpoenas for communications logs, issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers produce records of where their customers go on the Web, as well as what they read and with whom they exchange email. The FBI can even issue NSLs for information about people who haven't committed any crimes.
In addition, NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing.
Rewad more at http://www.eff.org/deeplinks/archives/004115.php
