Current events

May 2010

Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., (N.H. 2010) [1] (reporter's privilege as applied to website, adopts Dendrite standard for anonymous speakers)

Clear v. Superior Court, 2010 WL 2029016 (Cal.App. 4 Dist. May 24, 2010)

petitioner created a page on the MySpace Web site purportedly in the name of a pastor of a church. Petitioner and his family had left the church about a year before the pastor discovered the Web page. The Web page purports to be written by the pastor and contains statements that he has engaged in homosexual activity and narcotics use. ...

[Penal Code] Section 529 prohibits anyone to falsely personate another in either his private or official capacity and in such assumed character either: “3. Does any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person.” (§ 529, subd. 3.)

Here, petitioner did more than publish a MySpace Web page using the pastor's name. He published numerous statements, which arguably could have subjected the pastor to defamation actions or to be terminated from his position in the church."

Zynga Game Network Inc. v. Williams, 2010 WL 2077191 (N.D.Cal. 2010) (applies Doe test of Columbia Insurance Co. v. Seescandy.com)

April 2010

Too Much Media v. Hale, No. A-0964-09T3 (N.J. App. Ct. Apr. 22, 2010)[2] (reporter's privilege as applied to blogger)

March 2010

McVicker v. King, No. 09-cv-436 (W.D. Pa. March 3, 2010)[3] (Motion to Compel Response to Subpoena sent to non-party for identity of anonymous speaks denied)

First Amendment balancing:

Distilled to its essence, Plaintiff’s attempt to obtain the personally identifiable

information of the anonymous internet speakers is a fishing expedition based on speculation that the anonymous bloggers will be able to impeach the deposition testimony of the Individual Defendants. While disclosure of the anonymous speakers’ identities may certainly be helpful to Plaintiff, the Court does not believe that this is the exceptional case where the compelling need

for the discovery sought outweighs the First Amendment rights of the anonymous speakers.

Standing:

Plaintiff’s first argument - lack of standing - can be rejected rather summarily. The

trend among courts which have been presented with this question is to hold that entities such as newspapers, internet service providers, and website hosts may, under the principle of jus tertii standing, assert the rights of their readers and subscribers. In fact, the district court in Enterline expressly held, as a matter of first impression, that a newspaper had standing to assert the constitutional rights of anonymous posters to its website. Enterline, 2008 WL 5192386 at *3

(citing, inter alia, Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392 (1988)).

February 2010

Phan v. Pham, 2010 WL 658244 (Cal. App. Ct. Feb. 25, 2010) (email forwarding 230 case)

the only possible defamatory content is to be found in the e-mail was the original content received by defendant Pham from Nguyen Xuan Duc. Nothing “created” by defendant Pham was itself defamatory. Following Barrett, as did the trial court, we conclude that the judgment dismissing the case ... must be affirmed.

January 2010

Miller v. Facebook

Miller v. Facebook, Inc., 1:2009cv02810 (N.D. Ga. Jan. 15, 2010)[4] Upholding Facebook user agreement to transfer venue to California.

Stewart v. Rolling Stone

Stewart v. Rolling Stone LLC, __ Cal.Rptr.3d __, 2010 WL 317016 (Cal.App. 1 Dist. Jan. 28, 2010)[5] is a California anti-SLAPP case, holding that actual malice standard applies to claims brought under California Civil Code section 3344 (right of publicity), not just defamation lawsuits. Editorial feature containing plaintiff indie bands' names was protected activity for purposes of the anti-SLAPP statute, as editorial feature was in furtherance of defendants‘ constitutional right of freedom of speech made in connection with a public issue.

December 2009

State of Ohio v. Smith

In State v. Smith, __ N.E.2d __, 2009 WL 4826991 (Ohio 2009), the Supreme Court of Ohio held that a warrantless search of a cell phone pursuant to the 'search incident to arrest' doctrine violated the Fourth Amendment: "because a cell phone is not a closed container, and because an individual has a privacy interest in the contents of a cell phone that goes beyond the privacy interest in an address book or pager, an officer may not conduct a search of a cell phone's contents incident to a lawful arrest without first obtaining a warrant." The court rejected the analysis in United States v. Finley, 477 F.3d 250 (5th Cir. 2007), finding it inapposite because "Finley had conceded that a cell phone was analogous to a closed container." (Compare with United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D.Cal. May 23, 2007) (also rejecting Finley).

Nemet Chevrolet v. ConsumerAffairs.com

Nemet Chevrolet v. ConsumerAffairs.com, 2009 WL 5126224 (4th Cir. Dec. 29, 2009) [6] The court granted section 230(c)(1) immunity from defamation and tortious interference with a business expectancy claims to a website that included consumer complaints. The court found the allegations that ConsumerAffairs.com was a internet content provider because it fabricated complaints or helped write them was insufficiently supported by facts to survive a motion to dismiss.

Major v. McAllister

Major v. McAllister, — S.W.3d —, 2009 WL 4959941 (Mo. App. December 23, 2009) The court held that the plaintiff is bound by the forum selection clause in the browse-wrap terms and conditions of a website even though she never clicked on the link to or read the terms and conditions.

Columbia Pictures v. Fung

Columbia Pictures Industries, Inc., v. Fung, 2:06-cv-05578-SVW-JC (C.D. Cal. Dec. 21, 2009)[7] The court found that a torrent website operator was liable for copyright infringment under the inducement theory and ineligible for 512 safe harbor because it provided top search lists such as Top 20 Movies, and the defendants could not avoid seeing "red flags" if they had ever viewed their own site.

Blockowicz v. Williams

Blockowicz v. Williams, --- F.Supp.2d ----, 2009 WL 4929111, 1:09-cv-03955 (N.D. Ill. Dec. 21, 2009) [8] Pursuant to FRCP 65, a third-party website does not have to adhere to a court order directed at an individual to remove defamatory posting from the website.

Project DOD v. Federici

Project DOD, Inc. v. Federici, 2009 WL 4910320 (D. Me. Dec. 13, 2009) After the website of Advocates for Children in Therapy, a organizaton critical of attachment therapy, was taken down repeatedly due to DMCA takedown notices sent by persons it criticized, Project DOD, ACT's host filed a 512(f) claiming Mr. Federici had abused the takedown notice system to harass his critics. The court dismissed Project DOD's claim for lack of personal jurisdiction over Mr. Federici, analogizing the takedown notice to a cease and desist letter.

FragranceNet.com v. Les Parfums

FragranceNet.com, Inc. v. Les Parfums, Inc., No. 09-CV-2626, — F.Supp.2d —, 2009 WL 4609268 (E.D.N.Y. December 8, 2009) Plaintiff claimed that defendants' use of Plaintiff's trademarked name in AdWords constituted trademark infringment. Defendants countered that FragranceNet is generic, but the court found that whether a registered trademark is generic is not an appropriate issue for a motion to dismiss and continued the case.

Sony BMG Music v. Tenenbaum

Sony BMG Music Entertainment v. Tenenbaum, No. 07cv11446-NG, 2009 U.S. Dist. LEXIS 112845 (D. Mass. Dec. 7, 2009) [9] Music file-sharer is liable for copyright infringment. Fair use is not applicable because downloading, when widespread, has a substantial impact on the market for the original, and there was a readily available market for individual digital copies of songs during the applicable time period. The court also noted that the current copyright statute is onerous when applied to file sharers and that Congress should revisit it.

November 2009

Fair Isaac v. Experian Information Solutions

Fair Isaac Corp. v. Experian Information Solutions Inc., 2009 WL 4263699 (D. Minn. Nov. 25, 2009) The court determined after trial that the defendants' purchases of the plaintiff's trademarks as keywords search terms was not likely to confuse consumers.

October 2009

Dart v. Craigslist

Dart v. Craigslist, Inc., No. 09 C 1385, 2009 U.S. Dist. LEXIS 97596 (N.D. Ill. Oct. 20, 2009) [10] Section 230 protects craigslist from claims that it is a public nuisance by facilitating prostitution due to prostitution advertisements posted in its erotic services category.

Tricome v. Ebay

Tricome v. Ebay, Inc., 2009 WL 3365873 (E.D. Pa. October 19, 2009) The court upheld the forum selection clause in eBay's User Agreement, finding that the plaintiff clicked on the "I accept the User Agreement and Privacy Policy" checkbox, the clause is not unconscionable, and the User Agreement was not a contract of adhesion.

September 2009

Vernor v. Autodesk

Vernor v. Autodesk, Inc., No. C07-1189RAJ, 2009 U.S. Dist. LEXIS 90906 (W.D. Wa. Sept. 30, 2009) In granting Vernor's motion for summary judgment The court reaches the same conclusions as in an earlier opinion rejecting Autodesk's motion to dismiss. Vernor bought physical copies of AutoCAD software from a company and put them up for sale on eBay. Autodesk sent takedown notices ot eBay, claiming that the original company had "licensed" the copies of software from Autodesk and thus was not authorized to "transfer" them to Vernor, and that Vernor in turn was not authorized to sell them. The court rejected Autodesk's argument that the orginal company was a "licensee" rather than an owner of the physical copies, focusing on the fact that the company had a perpetual right of physical possession.

UMG v. Veoh

UMG Recordings, Inc. v. Veoh Networks, Inc., 2:07-cv-05744-AHM-AJW, 2009 U.S. Dist. LEXIS 86932 (C.D. Cal. Sept. 11, 2009) The court concluded that Veoh, a website that hosts user-generated videos met the requirements of 512(c) and thus is immune from copyright liability. The court held that "right and ability to control" in 512(c) means something different than the same words under a prima facie copyright infringment analysis, and requires something more than the ability to control or remove the material because otherwise service providers would be liable for the same characteristics that make them eligible for safe harbour in the first place. It also rejected the plaintiff's argument that Veoh had sufficient knowledge of infringment based on non-512(c)(3) compliant takedown notices that included artists' names. Furthermore, the court stated that Veoh had no obligation to filter, much less start using filtering technology earlier than it did. Also, Veoh was not require to terminate repeat infringers based on matching in the filtering software because it is unknown how many false positives occur. Nor was Veoh required to treat multiple files taken down by the same notice as multiple strikes.

August 2009

U.S. v. Drew

United States v. Drew, F.R.D. 449 (C.D. Cal. 2009) [11] In U.S. v. Drew, Plaintiff created a fictitious profile, and in doing so, violated Myspace’s Terms of Service. Plaintiff then used this fictitious profile to send insults to her daughter’s classmate. The classmate laer killed herself. The court in Drew concluded that, “an intentional breach of the MSTOS can potentially constitute accessing the MySpace computer/server without authorization and/or in excess of authorization under the statute.” Id. at 461. However, the court goes on to note that, “[t]he pivotal issue herein is whether basing a CFAA misdemeanor violation as per 18 U.S.C. §§ 1030(a)(2)(C) and 1030(c)(2)(A) upon the conscious violation of a website's terms of service runs afoul of the void-for-vagueness doctrine. This Court concludes that it does primarily because of the absence of minimal guidelines to govern law enforcement, but also because of actual notice deficiencies.” Id. at 465. A violation of the CFAA in this instance appears to hinge on whether a reasonable person, upon consenting to a click wrap agreement, would be put on notice that potential criminal penalties could be enforced for breaching the contract. The court in Drew noted that the CFAA, “does not explicitly state (nor does it implicitly suggest) that the CFAA has 'criminalized breaches of contract' in the context of website terms of service.” Id. Moreover, the court goes on to point out that, “[n]ormally, breaches of contract are not the subject of criminal prosecution . . . [and that] by utilizing violations of the terms of service as the basis for the section 1030(a)(2)(C) crime . . . the website owner-in essence [becomes the] party who ultimately defines the criminal conduct.” Id. “In sum, if any conscious breach of a website's terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law “that affords too much discretion to the police and too little notice to citizens who wish to use the [Internet].” Id. (citing City of Chicago v. Morales, 527 U.S. 41 at 64, 119 S.Ct. 1849).

U.S. v. Comprehensive Drug Testing

United States v. Comprehensive Drug Testing,' 579 F.3d 989 (9th Cir. 2009) [12] The court found the government violated 4th Amendment rights when it seized the drug tests results hundreds of people, including persons for which the government had no probable cause. The government failed to adhere to proper procedure in determining whether data was so intermingled it had to be segregated off-site and failed to screen and segregate data not included in the warrant. The court rejected the argument that everything on any digital storage device that could contain the data sought in the warrant is included in the "plain view" doctrine after it's seized and searched. Furthermore, the government process of sorting seizable data from other data must be aimed at sorting only, and the sorting should only be done by specialized personnel rather than investigating agents. After this is done, data not falling under the warrant should be returned or destroyed, and sorting personnel screened from sharing data not covered by the warrant with investigators.

July 2009

Goddard v. Google

Goddard v. Google, Inc., 5:08-cv-02738-JF (N.D. Cal. July 30, 2009) Case dismissed under 12(b)(6) and Section 230, because "Plaintiff has not come close to substantiating the 'labels and conclusions' by which she attempts to evade the reach of the CDA."

Metropolitan International Schools v. Designtechnica Corporation

Metropolitan International Schools v. Designtechnica Corporation, [2009] EWHC 1765 (QB) [13] In a defamation claim concerning statements on a web forum that Google indexed and produced in search results, the court refused to find that "on the evidence before [the court] the Third Defendant [Google] can be regarded as a publisher of the words complained of, whether before or after notification. Accordingly, on the evidence before [the court], [the court] can conclude that the Claimant would have 'no reasonable prospect of success'."

June 2009

Arista Records LLC v. Usenet.com, Inc.

Arista Records LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y. June 30, 2009).

This action arises out of allegations of widespread infringement of copyrights in sound recordings owned by Plaintiffs Arista Records LLC; Atlantic Recordings Corporation; BMG Music; Capitol Records, LLC; Caroline Records; Elektra Entertainment Group Inc.; Interscope Records; LaFace Records LLC; Maverick Recording Company; Sony BMG Music Entertainment; UMG Recordings, Inc; Virgin Records America, Inc.; Warner Bros. Records Inc; and Zomba Recording LLC (“Plaintiffs”), copies of which are available for download by accessing a network of computers called the USENET through services provided by Defendants Usenet.com, Inc. (“UCI”),FN1 Sierra Corporate Design, Inc. (“Sierra”), and spearheaded by their director and sole shareholder, Gerald Reynolds (“Reynolds”) (collectively, “Defendants”). Specifically, Plaintiffs brought this action alleging (1) direct infringement of the Plaintiffs' exclusive right of distribution under 17 U.S.C. § 106(3); FN2 (2) inducement of copyright infringement; (3) contributory copyright infringement; and (4) vicarious copyright infringement. There are two motions by Plaintiffs before me-one for termination due to discovery abuse, and another for summary judgment-with a cross-motion for summary judgment from the Defendants. Defendants' FN3 cross-motion for summary judgment argues that they are entitled to the safe harbor protections of § 512(c) of the Digital Millennium Copyright Act (“DMCA”). All parties filed numerous additional motions to exclude certain testimony, as well as voluminous evidentiary objections. Plaintiffs opine that their motion for terminating sanctions alleges discovery abuse sufficient to require that I strike the Defendants' answer and enter a default judgment in their favor (“Terminating Sanctions Motion”). For the reasons set forth below, Plaintiffs' Terminating Sanctions Motion is granted to the extent discussed in this opinion, though not in its entirety; Plaintiffs' motion for summary judgment is granted with respect to all claims; and Defendants' motion for summary judgment is dismissed as moot.

F.T.C. v. Accusearch Inc.

F.T.C. v. Accusearch Inc., 2009 WL 1846344 (10th Cir. June 29, 2009).

Abika.com is a website that has sold various personal data, including telephone records. The Federal Trade Commission (FTC) brought suit against the operator of the website, Accusearch Inc., and its president and owner, Jay Patel (collectively, Accusearch), to curtail Accusearch's sale of confidential information and to require it to disgorge its profits from the sale of information in telephone records. The FTC alleged that Accusearch's trade in telephone records (which are protected from disclosure under § 702 of the Telecommunications Act of 1996, 47 U.S.C. § 222 (2006)) constituted an unfair practice in violation of § 5(a) of the Federal Trade Commission Act (FTCA), 15 U.S.C. § 45(a) (2006). The district court granted the FTC summary judgment, see FTC v. Accusearch, Inc ., No. 06-CV-105-D, 2007 WL 4356786, at *10 (D.Wyo. Sept. 28, 2007), and after further briefing entered an injunction restricting Accusearch's future trade in telephone records and other personal information.

On appeal Accusearch contends that (1) the FTC's unfair-practice claim should have been dismissed because Accusearch broke no law and because the FTC had no authority to enforce the Telecommunications Act; (2) it was immunized from suit by the protections provided websites in the Communications Decency Act (CDA), 47 U.S.C. § 230 (2006); and (3) the injunction is unnecessary to prevent it from resuming trade in telephone records and is unconstitutionally overbroad. Exercising jurisdiction under 28 U.S.C. § 1291, we reject each of Accusearch's contentions and affirm. First, conduct may constitute an unfair practice under § 5(a) of the FTCA even if it is not otherwise unlawful, and the FTC may pursue an unfair practice even if the practice is facilitated by violations of a law not administered by the FTC, such as the Telecommunications Act. Second, Accusearch's claimed defense under the CDA fails because it acted as an “information content provider” (and thus is not entitled to immunity) with respect to the information that subjected it to liability under the FTCA. See 47 U.S.C. § 230(f)(3). Finally, the injunction was proper despite Accusearch's prior halt to its unfair practices and the possibility that the resumption of those practices would be criminally prosecuted; and Accusearch waived in district court its claim on appeal that the injunction is overbroad.

Zango, Inc. v. Kaspersky Lab, Inc.

Zango, Inc. v. Kaspersky Lab, Inc., No. 07-35800 (9th Cir. June 25, 2009). [14]

RYMER, Circuit Judge:

We must decide whether a distributor of Internet security

software is entitled to immunity under the safe harbor provision of the Communications Decency Act of 1996, 47 U.S.C. § 230, from a suit claiming that its software interfered with the use of downloadable programs by customers of an online media company. Zango, Inc. (Zango) is an Internet company that provides access to a catalog of online videos, games, music, tools, and utilities to consumers who agree to view advertisements while they browse the Internet. It brought this action against Kaspersky Lab, Inc., (Kaspersky) which distributes software that helps filter and block potentially malicious software, for improperly blocking Zango’s software. Kaspersky invoked the protection of § 230(c)(2)(B)1 for “good samaritan” blocking and screening of offensive material. The district court granted summary judgment in Kaspersky’s favor, holding that it is a provider of an “interactive computer service” entitled to immunity for actions taken to make available to others the technical means to restrict access to objectionable material.

We agree, and affirm.

Brave New Films 501(C)(4) v. Weiner

Brave New Films 501(C)(4) v. Weiner, 2009 WL 1622385 (N.D. Cal. Jun 10, 2009).

Defendant Michael Weiner is a nationally syndicated talk show host who performs under the name Michael Savage and hosts the talk show program “The Michael Savage Show.” During his two-hour broadcast of The Michael Savage Show on October 29, 2007, Savage made derogatory comments about Muslims, Islam, and the Quran.FN1 Shortly after the show aired, the Council for American-Islamic Relations (“CAIR”), a Muslim civil rights group, posted a criticism of Savage on the CAIR website. The posting included more than four minutes of audio excerpts from Savage's October 29, 2007 broadcast. In response to this criticism, Savage filed a lawsuit against CAIR on December 3, 2007 in this Court, Case No. C 07-6076 SI, alleging that CAIR infringed his copyright by posting audio excerpts of the October 29 broadcast on the CAIR website. On July 25, 2008, the Court found that CAIR's use of the broadcast constituted fair use and granted CAIR's motion for judgment on the pleadings on this issue. See July 25 Order, at *13. [C 07-6076 SI, Docket No. 38] In the CAIR case, there was no dispute that the October 29, 2007 broadcast was copyrighted and that Savage owned the copyrighted material. Id. at *4. According to the records of the United States Copyright Office, Savage is the registered copyright owner of the October 29, 2007 broadcast of The Michael Savage Show.FN2

FN1. The Court GRANTS plaintiff's request for judicial notice of exhibit G to plaintiff's Request for Judicial Notice. [Docket No. 50] Defendants do not dispute plaintiff's representation that this is an audio recording of excerpts from the October 29, 2007 broadcast of The Michael Savage Show. The excerpts include the following comments:

“I don't want to hear one more word about Islam. Take your religion and shove it up your behind. I'm sick of you.”

“Don't tell me I need reeducation. They need deportation.”

“You can take your due process and shove it.”

“Throwback bastards. I'm so sick of them.”

“Every day another story sweet-selling Islam and the Quran Wherever you look on the earth there's a bomb going off, or a car going up in flames, and it's Muslims screaming for the blood of Christians, or Jews, or anyone they hate.”

FN2. The Court GRANTS plaintiff's request for judicial notice of exhibit E to plaintiff's Request for Judicial Notice. [Docket No. 50] Defendants do not dispute that this is an accurate copy of the U.S. Copyright Office's website registration record of the October 29, 2007 broadcast of The Michael Savage Show. The registration reflects that Michael Weiner/Savage holds the copyright to this broadcast.

The subject of this lawsuit is a video entitled “Michael Savage Hates Muslims” (“the Video”) created by plaintiff Brave New Films 501(c)(4) (“Brave New Films”). Complaint, ex. B. The Video is one minute and twenty-three seconds long and uses approximately one minute of audio excerpts from the October 29, 2007 broadcast. Id. It also advertises a website, www.nosavage.com, and urges viewers to “do something” about Savage. Id.

On January 18, 2008, Brave New Films uploaded the Video to the internet site owned by YouTube, Inc. On September 29, 2008, defendant Original Talk Radio Network, Inc. (“OTRN”), through its counsel, contacted YouTube concerning the Video and 258 other videos, almost all of which apparently contain content from The Michael Savage Show. See Complaint, ex. C (“the September 29 letter”). OTRN syndicates and distributes talk radio content, including The Michael Savage Show, to more than 300 affiliate radio stations. In the September 29 letter, which was directed to YouTube's “DMCA Complaints” department,FN3 OTRN's counsel claimed that its office “represents the owner of an exclusive right infringed by” the 259 videos. The letter characterized The Michael Savage Show as “OTRN Content.” It demanded that YouTube immediately remove all videos that contained content from The Michael Savage Show, including the 259 videos listed in the letter. The letter also advised YouTube that “OTRN does not, by this letter, disclaim, release or speak for the separate rights of Michael Savage ... with respect to any content” posted on YouTube. See Complaint, ex. C.

FN3. The “DMCA” apparently refers to the Digital Millennium Copyright Act.

• 2 YouTube responded to OTRN's letter by disabling access to the Video and Brave New Films' entire YouTube channel. Decl. of James Gilliam in Supp. of Pl. Mot. for Summ. J. (“Gilliam Decl.”) ¶ 9. It also notified Brave New Films that the Video had been removed in response to OTRN's letter. See Complaint, ex. E. On October 3, Brave New Films sent a DMCA counter-notice to YouTube, stating that the Video had been removed from YouTube in error. Gilliam Decl ., ex. A. On October 10, Brave New Films filed this lawsuit against Savage and OTRN, (1) seeking a declaratory judgment that the Video does not infringe copyrights held by OTRN or Savage, and (2) alleging misrepresentation in violation of the DMCA, 17 U.S.C. § 512(f). YouTube restored the Video to the YouTube site on October 20. Gilliam Decl. ¶ 13 . . . the Court DENIES plaintiff's motion for summary adjudication of its claim for declaratory judgment against OTRN.

Johnson v. Microsoft Corp.

Johnson v. Microsoft Corp., 2009 WL 1794400 (W.D. Wash. June 23, 2009).

The facts of this case were also described in the order ruling on the Defendant's first motion for partial summary judgment. See Order (Dkt.# 137). The court reiterates some of that description here, and will also address specific facts as necessary in its later analysis.

This is a putative class-action lawsuit arising from Defendant Microsoft Corporation's (“Microsoft”) installation of the Windows Genuine Advantage (“WGA”) program onto Plaintiffs' computers using the Windows XP operating system.

When a person buys a computer with Windows XP, the person must complete installation of the operating system in order to use the computer. During the installation process, the Windows XP End User License Agreement (“EULA”) is displayed on the user's computer screen and the user must accept its terms to complete installation of Windows XP. After Windows XP is installed, it must be activated within 30 days after the user first runs the software. During activation, the computer transmits a unique 25-character license key to Microsoft to confirm that the user's copy of Windows XP is genuine and that the software has not already been installed on another user's computer.

Microsoft also verified the validity of a user's version of Windows XP via WGA. WGA sends information about the user's computer system to Microsoft, and notifies users if their copy of Windows XP is not genuine. Microsoft distributed WGA via three of Windows XP's updates services: Automatic Updates, Windows Update, and Microsoft Update. Users can adjust Automatic Updates to install updates automatically, manually, or not at all. Users can also visit the Windows Update or Microsoft Update websites to review and download updates.

In April 2008, Plaintiffs filed a second amended consolidated complaint, raising claims for unjust enrichment, breach of the EULA,FN2 violation of Washington's Consumer Protection Act, and trespass to chattels, nuisance and interference with property.

FN2. There are multiple versions of the Windows XP EULA. See 2d Am. Consol. Compl. (Dkt.# 138) ¶ 49; Kirkwood Decl. (Dkt.# 150), Exs. B & D; Quackenbush Decl. (Dkt.# 151), Exs. AE, G. See also Def.'s Mot. (Dkt. # 149), App. Unless otherwise indicated, the EULA language relevant for purposes of resolving the parties' motions is the same in each variation. For the sake of simplicity, the order typically refers to “the EULA” in the singular.

Microsoft moved for summary judgment against the EULA claim, and Plaintiffs subsequently moved for summary judgment on the same claim . . . the court GRANTS the Defendant's motion (Dkt.# 149), and thereby DENIES the Plaintiffs' motion (Dkt. # 186).

May 2009

Barnes v. Yahoo!, Inc.

Barnes v. Yahoo!, Inc., 2009 WL 1232367 (9th Cir. May 7, 2009) [15]

In Barnes, fake profiles were created on a website run by Defendant, Yahoo!, Inc., of Plaintiff, Cecillia Barnes, without her authorization by a former boyfriend. The profiles contained nude photos of Plaintiff taken without her knowledge and some kind of open solicitation to engage in sexual intercourse. Plaintiff ‘s repeated requests for Defendant to remove the profiles went unanswered and the advances from undesired men continued. One day before a local news program was set to broadcast Plaintiff’s story, Plaintiff claims that Defendant contacted her with a promise, on which she relied, to stop the unauthorized profiles. When Defendant did not uphold its promise, Plaintiff filed suit, alleging negligence and a cause of action under section 90 of the Restatement (Second) of Contracts (1981).

The Ninth Circuit Court of Appeals gave an expansive reading of Section 230. The court stated that Section 230 is an affirmative defense and that distributor liability is not covered. Further, the court noted that promissory estoppel, can create an implied waiver of the baseline rule for Subsection 230(c)(1): “no liability for publishing or speaking the content of other information service providers.” Id at *11.

The Court of Appeals held that Defendant was immune from Plaintiff's negligent undertaking claim under the Communications Decency Act, but that Defendant did not have immunity under the Communications Decency Act from Plaintiff's promissory estoppel claim.

April 2009

Harris v. Blockbuster Inc.

Harris v. Blockbuster Inc., 2009 WL 1011732 (N.D. Tex. April 15, 2009). Video Privacy Protection Act

This case arises out of alleged violations of the Video Privacy Protection Act by Defendant Blockbuster Inc. (“Blockbuster”). Blockbuster operates a service called Blockbuster Online, which allows customers to rent movies through the internet. Blockbuster entered into an agreement with Facebook (“the Blockbuster contract”) which caused Blockbuster's customers' movie rental choices to be disseminated on the customers' Facebook accounts through Facebook's “Beacon” program. In short, when a customer rented a video from Blockbuster Online, the Beacon program would transmit the customer's choice to Facebook, which would then broadcast the choice to the customer's Facebook friends.

Plaintiff claims that this arrangement violated the Video Privacy Protection Act, 18 U.S.C. § 2710, which prohibits a videotape service provider from disclosing personally identifiable information about a customer unless given informed, written consent at the time the disclosure is sought. The Act provides for liquidated damages of $2,500 for each violation.

Blockbuster attempted to invoke an arbitration provision in its “Terms and Conditions,” which includes a paragraph governing “Dispute Resolution” that states, in pertinent part: “[a]ll claims, disputes or controversies ... will be referred to and determined by binding arbitration.” It further purportedly waives the right of its users to commence any class action. As a precondition to joining Blockbuster Online, customers were required to click on a box certifying that they had read and agreed to the Terms and Conditions.

On August 30, 2008, before the case was transferred to this Court, the Defendant moved to enforce the arbitration provision. The Plaintiffs argued that the arbitration provision is unenforceable, principally for two reasons: (1) it is illusory; and (2) it is unconscionable. Because the Court concludes that the arbitration provision is illusory, the Court does not reach the unconscionability issue.

February 2009

Independent Newspapers, Inc. v. Zebulon J. Brodie

Independent Newspapers, Inc. v. Zebulon J. Brodie, (Md. Ct. of App. Feb 29, 2009).[16]

"For guidance of the trial courts when future cases arise, the Court suggested a process to balance First Amendment rights with the right to seek protection for defamation, citing with approval the test from Dendrite Int’l, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001)."

Lukowski v. County of Seneca

Lukowski v. County of Seneca, 2009 WL 467075, W.D.N.Y., February 24, 2009 (NO. 08-CV-6098)[17]

Plaintiff anonymous speakers alleged that t County of Seneca officials had compelled the website to disclose identity info with "illegal subpoenas" for their identities. The court upheld their Fourth Amendment and ECPA claims.

January 2009

Andritz, Inc. v. Southern Maintenance Contractor, LLC

Andritz, Inc. v. Southern Maintenance Contractor, LLC, 2009 WL 48187 (M.D. Ga. January 7, 2008)[18]

In this action, Plaintiff alleges that Defendants, who are former employees of Plaintiff, stole Plaintiff's trade secrets and other proprietary business information and that Defendants' conduct gives rise to a civil claim under the federal Computer Fraud and Abuse Act. [Pending] before the Court [was] Defendants' Motion to Dismiss (Doc. 13). [Because]Plaintiff's federal claim fail[ed] to state a claim upon which relief may be granted, [Defendants'] motion is granted as to that claim. The Court decline[ed] to exercise supplemental jurisdiction over Plaintiff's remaining state law claims, and those claims [were] dismissed without prejudice.

NPS LLC v. StubHub, Inc.

NPS LLC v. StubHub, Inc., 2009 WL 995483 (Mass. Super. Ct. Jan. 26, 2009) [19]

The New England Patriots (“the Patriots”) [brought] this action seeking, among other things, [permanent] injunctive relief barring defendant StubHub, Inc. (“StubHub”) from participating in the resale of Patriots tickets on its internet website. As against StubHub, the Amended Complaint claims (1) intentional interference with advantageous relations (Count I); misappropriation of name (Count II); and unfair trade practices in violation of G.L. c. 93A, § 11 (Count III). In Count VII, the Patriots ask the Court to hold all StubHub profits obtained through the sale of Patriots' tickets in a constructive trust. StubHub [moved] for partial summary judgment on Count I . . . a genuine issue of material fact [existed] as to whether the Patriots [incurred] or will incur additional administrative costs as a result of StubHub's conduct. These administrative costs were, at best, a toehold to establish pecuniary loss, but a toehold is sufficient to survive a motion for summary judgment . . . the motion [was denied].

Before 2009

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