Current events archive

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December 2008

Alvi Armani Medical, Inc. v. Hennessey

Alvi Armani Medical, Inc. v. Hennessey, 2008 WL 5971233 (S.D. Fla. Dec. 9, 2008).

On May 19, 2008, Plaintiffs Dr. Antonio Alvi Armani (“Dr.Armani”) and Alvi Armani Medical, Inc. (“Armani Medical”) commenced this action with the filing of the Complaint against Defendants Patrick Hennessey (“Hennessey”) and Media Visions, Inc. (“Media Visions”). The Complaint alleges, inter alia, that Dr. Armani is a physician specializing in "hair restorations and hair transplants,] and that he founded Armani Medical . . . The Complaint further alleges that, upon information and belief, Defendant Media Visions is the owner, host, and publisher of a website called the "Hair Restoration Network," which is identified as being "dedicated to providing information to the consumer public about the hair restoration and transplant industry,” and that such website is controlled by Defendant Hennessey . . . According to the Complaint, Defendants have engaged in false, deceptive and unfair business practices in knowingly posting disparaging and false statements about Dr. Armani and Armani Medical on the website and by creating the impression that posters on the website are bona fide disgruntled patients of Plaintiffs, when in fact the posters are either fictitious persons or undisclosed affiliates of doctors who are on the website's recommended list of “pre-screened” doctors . . . The Complaint also asserts that as a result of such posts, many individuals have decided not to use the services of Plaintiffs . . .Based on these and additional allegations in the Complaint, Plaintiffs assert claims for Deceptive and Unfair Trade Practices (“FDUTPA”) (Count I); Defamation (Count II); and for Temporary and Permanent Injunctive Relief (Count V).

On September 17, 2008, Counts III and IV were dismissed without prejudice from the Complaint.

Here the cause is before the courts based on the "Defendants'Renewed Motion to Dismiss Complaint." Id. at *1

In their Motion, Defendants first argue that the Court must treat Plaintiffs' claims under FDUTPA and for defamation as a single claim because both claims arise out of the same set of operative facts . . . Next, Defendants argue that Plaintiffs have failed to comply with Section 770.01 of the Florida Statutes because Plaintiffs have not alleged that they provided the requisite five days' notice before commencing their defamation claim against Defendants, nor can they comply with such prerequisite, as they failed to provide timely notice under the statute. ( Id. at 5-7.) Next, Defendants argue that, in any event, Plaintiffs have failed to identify the allegedly defamatory statements with sufficient specificity in order to state claim . . . Additionally, Defendants argue that Media Visions is immune under the Communications Decency Act (“CDA”) because the alleged defamatory statements were made by third parties . . . Defendants also argue that Media Vision's forums are not “trade or commerce” under FDUTPA, and thus Count I of the Complaint must be dismissed . . . Finally, Defendants argue that Count V seeks an impermissible prior restraint on speech and should be dismissed as inconsistent with the First Amendment to the United States Constitution.

The court granted Defendant's motion in part, dismissing Count II, but allowing the first count to remain (Counts III and IV were previously dismissed).

Universal Music Group v. Veoh

Universal Music Group v. Veoh, 2008 WL 5423841 (C.D.Cal. 2008)[1]

The four software functions that UMG challenges fall

within the scope of § 512(c), because all of them are narrowly directed toward providing access to material stored at the direction of users. Both the conversion of uploaded files into Flash format and the “chunking” of uploaded files are undertaken to make it easier for users to view and download movies, and affect only the form and not the content of the movies; “streaming” and downloading merely are two technically different means of accessing

uploaded videos.

Doe v.

Doe v., 2008 WL 5396830 (6th Cir. Dec. 30, 2008)

User sued online adult dating service after he was introduced to and had sex with underage partner, resulting in criminal proceedings against him. Service moved to dismiss for failure to state a claim. The United States District Court for the Northern District of Ohio, Jack Zouhary, J., 502 F.Supp.2d 719, granted motion and dismissed all fourteen causes of action. User appealed. The district court's judgment was affirmed.

Higher Balance, LLC v. Quantum Future Group, Inc., 2008 WL 5281487 (D.Or. Dec. 18, 2008)

Plaintiff Higher Balance LLC, doing business as Higher Balance Institute (plaintiff or HBI), assert[ed] claims for libel, false light, intentional interference with business relationships, and intentional interference with prospective economic advantage against defendants Quantum Future Group (QFG), Quantum Future School (QFS), Laura Knight-Jadczyk (Knight-Jadczyk), and Signs of the Times (SOTT). These claims stem from postings published on an Internet forum beginning on May 2, 2006, and continuing until December 6, 2007. Defendants [made] a special motion to strike these claims . . . [P]laintiff fails to prove that Knight-Jadczyk's postings are defamatory. Because plaintiff {could not] establish a probability that it [would] prevail by presenting substantial evidence to support a prima facie [case], the court [struck] plaintiff's claims for intentional interference with economic relations and intentional interference with prospective economic relations.

Goddard v. Google, Inc.

Goddard v. Google, Inc., 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008)

Plaintiff, Jenna Goddard, claimed that she and a class of similarly situated individuals suffered injury at the hands of Google, Inc., Defendant, as a result of clicking on Google AdWords web-based advertisements created by allegedly fraudulent providers of services for various mobile devices. The subscription providers sold mobile products such as ringtones over the Internet for use on mobile devices such as cellular phones. She alleged breach of contract, negligence, violation of California’s Unfair Competition Law, and that Defendant aided and abetted the mobile service providers “in violating various statutory and common law rules. “ The court held that, “[e]ach of Plaintiff’s claims . . . premised fundamentally on Google’s publication of the AdWords advertisements,” thus Plaintiff was unable to avoid section 230 immunity. Id. at *7.

Enterline v. Pocono Medical Center

Enterline v. Pocono Medical Center, 2008 WL 5192386 (M.D. Pa. December 11, 2008) (doe case)

On October 9, 2008, The Pocono Record (“Newspaper” or “Respondent”) published an article about Plaintiff's lawsuit in its print edition and on its website. (Ex. A, Doc. 15.) In response to the article, several people anonymously posted comments on the Newspaper's website with some of the posters claiming to have personal knowledge of the parties or facts at issue in Plaintiff's suit. (Ex. B, Doc. 15.) On October 20, 2008, the Plaintiff served The Pocono Record a subpoena demanding production of documents pertaining to the identity of individuals who had made these anonymous posts.


In summary, (1) the anonymous commentators to The Pocono Record website face practical obstacles to asserting their own First Amendment rights; (2) the commentators' third-party representative before the Court displays the adequate injury-in-fact to satisfy Article III's case or controversy requirements; and (3) The Pocono Record will zealously argue and frame the issues before the Court. For these three reasons, the Court finds that The Pocono Record has third-party standing to assert the First Amendment rights of individuals posting to the Newspaper's online forums.


the Court believes that much of the information the Plaintiff hopes to uncover after learning the identities of commentators on the Newspaper's website is information that will be obtained through normal, anticipated forms of discovery, including depositions of Ms. Enterline's co-workers and other individuals associated with Dr. Cooks and the Pocono Medical Center. While disclosure of the commentators' identities would certainly be helpful to the Plaintiff, the Court does not believe that this is an exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speaker. For this reason, Plaintiff's motion will be denied

November 2008

E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc.

E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., No. 06-56237 (9th Cir. Nov. 5, 2008)[2]

"We must decide whether a producer of a video game in the“Grand Theft Auto” series has a defense under the First Amendment against a claim of trademark infringement. ... ESS claims that Rockstar’s depiction of an East Los Santos strip club called the Pig Pen infringes its trademark and trade dress associated with the Play Pen. ... Rockstar argues that, regardless of whether it infringed ESS’s trademark under the Lanham Act or related California law, it is entitled to two defenses: one under the nominative fair use doctrine and one under the First Amendment. ... we conclude that Rockstar’s modification of ESS’s trademark is not explicitly misleading and is thus protected by the First Amendment."

October 2008

Ferrone v. Onorato

Ferrone v. Onorato, No. 07-4299, 2008 WL 4763257 (3rd Cir. October 31, 2008) (Spam)

Private party, whose electronic communications to elected officials were purportedly intercepted and redirected by other county officials via a “spam” filter, brought action against county and county officials, alleging constitutional violations. Defendants moved to dismiss. The United States District Court for the Western District of Pennsylvania, Donetta W. Ambrose, Chief Judge, adopted the report and recommendation of Francis X. Caiazza, United States Magistrate Judge, 2007 WL 2973684, granting motion. Private party appealed.

The district court's decision was affirmed.

J.T. Shannon Lumber Company, Inc. v. Gilco Lumber Inc

J.T. Shannon Lumber Company, Inc. v. Gilco Lumber Inc, 2008 WL 4755370 (N.D.Miss. Oct 29, 2008)

The Stored Communications Act has not changed since the court issued its order quashing the subpoenas duce tecum; thus the statute still controls this matter. The statute is clear on this matter--the third party intermediaries may not disclose such information. [FN1] The subpoenas as issued remain facially invalid. [FN2]

FN1. 18 U.S.C. § 2702 (2008).

FN2. The plaintiff encourages the court to follow the holding in O'Grady v. Superior Court, 44 Cal.Rptr.3d 72, 88 (2006). O' Grady supports the court's original order and does not create any exception to the privacy act for civil discovery or allow for coercion of defendants to allow such disclosure. Therefore, O'Grady does not support the plaintiff's motion for reconsideration.

In addition to requesting the court reconsider its order quashing the subpoenas duces tecum, the plaintiff requests additional relief, which is not proper. By requiring the defendant and its employees to consent to the disclosure of such information by subpoena of the internet service provider, the court would undermine the statute's intent to create a zone of privacy around that medium. There is no exception in the statute for civil discovery, and the court declines to create one by allowing an end run around the statute. See generally In re Subpoena Duces Tecum to AOL, LLC., 550 F.Supp.2d 606, 611 (E.D.Va.2008). Finally, the plaintiff has other means of obtaining any discoverable information at its disposal, which would not be contrary to the Stored Communications Act. Therefore, the court is not persuaded by the plaintiff's arguments.

September 2008

Parker v. Yahoo, Inc.

Parker v. Yahoo, Inc., 2008 WL 4410095 (E.D. Pa. Sept. 25, 2008). Implied license for search engine cache copies.

Plaintiff Gordon Roy Parker (“Parker”), pro se, brings this action against Defendants Yahoo!, Inc. (“Yahoo”) and Microsoft Corporation (“Microsoft”), alleging copyright infringement, breach of contract, and negligence. Before the Court are the defendants' motions to dismiss. The Court will grant in part and deny in part these motions . . . Parker is the author of several registered works including Outfoxing the Foxes and Why Hotties Choose Losers, both which are published online and are freely available from Parker's website. Defendants Yahoo and Microsoft own and operate widely used internet search engines. Parker alleges that these search engines create and republish unauthorized “cached” copies of his works. That is, when an internet user runs a search on either of the defendants' search engines, the search results include hyperlinks to archived, or “cached,” copies of the web pages that are responsive to the user's inquiry. A user may view these search results either by following a hyperlink to the original website or, alternatively, by viewing the “cached” copy that is hosted on the defendants' computers. Parker concedes in his complaint that the defendants each provide opt-out mechanisms that would prevent his websites from being cached, but that Parker has not made use of them. Parker claims that by making cached copies of his websites available to their users, both Yahoo and Microsoft republish his works in their entirety without his permission.

The court does not dismiss Claim I in its entirety, noting that even if there was an implied license to cache Plaintiff's pages, a non-exclusive implied license can be revoked where there's no consideration and initiation of a lawsuit, may on its own signal revocation. However, the court dismissed claims II and III noting that Plaintiff did not show that Defendant benefited financially from the third party infringement or even that the Plaintiff's had knowledge of the third party's infringement. Likewise, counts IV and V were dismissed. The court explained that these claims were preempted by federal copyright law.

J.S. ex rel. Snyder v. Blue Mountain School Dist.

J.S. ex rel. Snyder v. Blue Mountain School Dist., 2008 WL 4279517 (M.D. Pa. Sept. 11, 2008). Court upholds "discipline of a student for creating a false internet profile purporting to be her school principal," distinguishes Layshock v. Hermitage Sch. Dist., 496 F.Supp.2d 587 (W.D.Pa. 2007).

On March 18, 2007, a personal profile appeared on the website with the picture of James McGonigle, principal of Defendant Blue Mountain Middles School, which indicated, inter alia, that he is a pedophile and a sex addict . . . This imposter profile had been created by Plaintiff J.S., a fourteen-year old eighth grade student at Blue Mountain Middle School and her friend K.L., also a student . . . The students created the profile from the home computer owned by J.S.'s parents during non-school hours . . . The profile did not identify McGonigle by name, but it identified him as a principal and included his picture which had been taken from the school district's website . . . Before the court for disposition [were] cross-motions for summary judgment in this civil rights action based upon a school's discipline of a student for creating a false internet profile purporting to be her school principal.

Summary judgment was denied to the plaintiff and granted tot he defendant. The court noted that Plaintiff could not establish a First Amendment violation, the policies that Plaintiff was accused of violating were not vague or overbroad, and that "the school did not err in disciplining [Plaintiff], and her actions were not merely personal home activities, thus the parental rights of Plaintiff's parents were not violated.

Spanierman v. Hughes, 2008 WL 4224483 (D. Conn. Sept 16, 2008) Termination of teacher for communications with students via MySpace not violations of teacher's rights. Capitol Records v. Jammie Thomas, Case No. 06‐1497 (D. Minn. Sept. 24 2008) [3]. New trial ordered. Rowling v. RDR Books, Case No. 07 Civ. 9667 (SDNY 2008) [4] Lexicon infringed Rowling's Harry Potter copyright and was not protected by fair use. RDR Books is enjoined. Sam’s Wines & Liquors, Inc. v. Hartig, 2008 WL 4394962 (N.D.Ill. September 24, 2008) (CFAA damages) Jaynes v. Commonwealth of Virginia (Va. Sep. 12, 2008)[5] (Spam)

August 2008

Lenz v. Universal

'Lenz v. Universal [6].

On February 7, 2007, Plaintiff Stephanie Lenz (“Lenz”) videotaped her young children dancing in her family’s kitchen. The song “Let’s Go Crazy” by the artist professionally known as Prince (“Prince”) played in the background . . . On February 8, 2007, Lenz titled the video “Let’s Go Crazy #1” and uploaded it to (“YouTube”), a popular Internet video hosting site, for the alleged purpose of sharing her son’s dancing with friends and family . . . and demanded that YouTube remove Lenz’s video from the site because of a copyright violation . . . On July 24, 2007, Lenz filed suit against Universal alleging misrepresentation pursuant to 17 U.S.C. § 512(f) and tortious interference with her contract with YouTube. She also sought a declaratory judgment of non-infringement. Universal filed a motion to dismiss, which the Court

granted on April 8, 2008. Lenz was given leave to amend her complaint to replead her first and second claims for relief. On April 18, 2008, Lenz filed the operative SAC, alleging only a claim for misrepresentation pursuant to 17 U.S.C. § 512(f). On May 23, 2008, Universal filed the instant motion [to dismiss].

The court denied Universal’s motion, and the ruling has been seen as requiring copyright owner’s to consider fair use when submitting DMCA 512 takedown notices.

The Cartoon Network LP v. CSC Holdings, Inc.

The Cartoon Network LP v. CSC Holdings, Inc., No. 07-1480-cv(L) & 07-1511-cv(CON) (2d Cir. Aug. 4, 2008). DVR service does not infringe.

Jacobsen v. Katzer et. al

Jacobsen v. Katzer et. al, No. 2008-1001 (Fed. Cir. Aug. 13, 2008)[7] (open source)

[The Court] consider[s] here the ability of a copyright holder to dedicate certain work to free public use and yet enforce an “open source” copyright license to control the future distribution and modification of that work. Appellant Robert Jacobsen (“Jacobsen”) appeals from an order denying a motion for preliminary injunction. Jacobsen v. Katzer, No. 06-CV- 01905 JSW, 2007 WL 2358628 (N.D. Cal. Aug. 17, 2007). Jacobsen holds a copyright to computer programming code. He makes that code available for public download from a website without a financial fee pursuant to the Artistic License, an “open source” or public license. Appellees Matthew Katzer and Kamind Associates, Inc. (collectively “Katzer/Kamind”) develop commercial software products for the model train industry and hobbyists. Jacobsen accused Katzer/Kamind of copying certain materials from Jacobsen’s website and incorporating them into one of Katzer/Kamind’s software packages without following the terms of the Artistic License. Jacobsen brought an action for copyright infringement and moved for a preliminary injunction. The District Court held that the open source Artistic License created an “intentionally broad” nonexclusive license which was unlimited in scope and thus did not create liability for copyright infringement . . . The heart of the argument on appeal concerns whether the terms of the Artistic License are conditions of, or merely covenants to, the copyright license. Generally, a “copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement” and can sue only for breach of contract. Sun Microsystems, Inc., v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999); Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998). If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir.1989); Nimmer on Copyright, ' 1015[A] (1999). Thus, if the terms of the Artistic License allegedly violated are both covenants and conditions, they may serve to limit the scope of the license and are governed by copyright law. The District Court did not expressly state whether the limitations in the Artistic License are independent covenants or, rather, conditions to the scope; its analysis, however, clearly treated the license limitations as contractual covenants rather than conditions of the copyright license . . . Jacobsen argues that the terms of the Artistic License define the scope of the license and that any use outside of these restrictions is copyright infringement. Katzer/Kamind argues that these terms do not limit the scope of the license and are merely covenants providing contractual terms for the use of the materials, and that his violation of them is neither compensable in damages nor subject to injunctive relief. Katzer/Kamind’s argument is premised upon the assumption that Jacobsen’s copyright gave him no economic rights because he made his computer code available to the public at no charge . . . The Artistic License states on its face that the document creates conditions: The intent of this document is to state the conditions under which a Package may be copied. (Emphasis added.) The Artistic License also uses the traditional language of conditions by noting that the rights to copy, modify, and distribute are granted “provided that” the conditions are met. [The court] determined that the terms of the Artistic License are enforceable copyright conditions, [and] remand[ed] to enable the District Court to determine whether Jacobsen has demonstrated (1) a likelihood of success on the merits and either a presumption of irreparable harm or a demonstration of irreparable harm; or (2) a fair chance of success on the merits and a clear disparity in the relative hardships and tipping in his favor.

Io Group, Inc. v.. Veoh Networks, Inc.

Io Group, Inc. v.. Veoh Networks, Inc., No. C06-03926 HRL, 2008 WL 4065872 (N.D.Cal. Aug. 27, 2008)[8]

This is a civil action for alleged copyright infringement. Presently before this court are

the parties’ cross-motions for summary judgment.1 Plaintiff Io Group, Inc. moves for summary judgment on liability. Defendant Veoh Networks, Inc. seeks judgment that it qualifies for “safe harbor” under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512 . . . Between June 1, 2006 and June 22, 2006, Io says it discovered that clips from ten of its copyrighted films had been uploaded and viewed on without its authorization . . . When it discovered the presence of the allegedly infringing files, Io did not tell Veoh that it believed its copyrights were being violated. Veoh’s first notice of the claimed infringement was Io’s filing of the instant lawsuit on June 23, 2006. Coincidentally, Veoh had already independently decided that it would no longer permit adult content on By the time this suit was filed, access to all adult content on Veoh’s website – including any content allegedly infringing Io’s copyrights – had been terminated . . . [E]ven assuming that plaintiff’s infringement claims pass summary judgment muster, this court concludes that Veoh is eligible for safe harbor protection from damages and, further, that the limited injunctive relief provided under the DMCA is moot . . . Because the court finds that, under the particular facts presented here, Veoh qualifies for safe harbor under Section 512(c), the only relief available to plaintiff is the limited injunctive relief under Section 512(j). In this case, before it ever received notice of any claimed infringement, Veoh independently removed all adult content, including video files of plaintiff’s works, and it no longer allows such material on Thus, any injunctive relief to which Io would be entitled is moot. Because an opinion as to Veoh’s liability for copyright infringement would be merely advisory, this court does not reach the issues raised in plaintiff’s motion for summary judgment . . . The record presented demonstrates that, far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its website and works diligently to keep unauthorized works off its website. In sum, Veoh has met its burden in establishing its entitlement to safe harbor for the alleged infringements here.

July 2008

Perfect 10, Inc. v. Google, Inc.

Perfect 10, Inc. v. Google, Inc., 2008 WL 4217837 (C.D. Cal. July 16, 2008).

This matter comes before the Court on Plaintiff Perfect 10, Inc.'s (“P10”) Federal Rule of Civil Procedure 15(a) motion for leave to file a Second Amended Complaint (“SAC”), which would add certain new claims and new factual allegations. Defendant Google, Inc. (“Google”) opposes this motion.

P10's proposed SAC asserts the following claims: (1) Copyright infringement; (2) federal trademark infringement; (3) federal trademark dilution; (4) unfair competition under federal law, Cal. Bus. & Prof.Code § 17200, and the common law; (5) violation of rights of publicity under Cal. Civ.Code § 3344 and the common law; (6) unjust enrichment; and (7) misappropriation. Declaration of Jeffrey N. Mausner, Ex. 10 (“Proposed SAC”). The following changes are the subject of this motion:

A. The SAC contains new factual allegations for direct copyright infringement, based on Google's ownership of a weblog service, referred to by the parties as Blogger. Simply put, P 10 wishes to allege that Google is storing full size P 10 images on its servers and hosting infringing weblogs and is therefore directly liable for copyright infringement under the “server test.”

B. The SAC asserts new state law claims for California and common law unfair competition, unjust enrichment, and misappropriation.

C. The SAC includes additional factual allegations for P10's existing federal unfair competition claim and rights of publicity claim.

D. The SAC adds new copyrights, including 653 unregistered copyrights whose applications are pending.

Google opposes allowing [P10] to allege the new claims and factual allegations. Google also filed evidentiary objections to certain portions of the Declaration of Norman Zada. Significant portions of the Zada Declaration consist of purported evidence on the merits and are thus irrelevant to this motion; some portions are also argumentative and lacking in foundation. For those reasons, the Court sustains all of Google's objections except to the following portions: The third sentence of Zada Declaration (citation omitted) and the first sentence of Zada Declaration (citation omitted). These portions are admissible.

May 2008

Doe v. MySpace

Doe v. MySpace [9]
Fifth Circuit holds that Section 230 immunizes MySpace from liability for minor's use of system with false information.

Jane and Julie Doe (“the Does”) appeal the district court’s dismissal of

their claims for negligence and gross negligence, and its finding that the claims were barred by the Communications Decency Act (“CDA”), 47U.S.C§230, and Texas common law. At no time before filing their appeal in this Court did the Does argue that the CDA should not apply to MySpace because it was partially responsible for creating information exchanged between Julie and Solis. Because the Does

Failed to present this argument to the district court, they are barred from making this argument on appeal. (citation omitted) . . . We therefore hold, without considering the Does’ content-creation argument, that their negligence and gross negligence claims are barred by the CDA, which prohibits claims against Web-based interactive computer services based on their publication of third-party content. 47 U.S.C. § 230(c)(1), (e)(3). Because we affirm the district court based upon the application of § 230(c)(1), there is no need to apply §230(c)(2), or to assess the viability of the Does’ claims under Texas common law in the absence of the CDA.

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). [10]
Section 230 protected Craigslist against Fair Housing Claim.

Section 230 protected craigslist against Fair Housing Claim.

Public interest consortium filed suit against online service provider for allegedly violating Fair Housing Act (FHA) by posting notices that advertised housing by indicating preference, limitation, or discrimination based on race, religion, sex, or family status.

[The court held that,] [c]ausation . . . must refer to causing a particular statement to be made, or perhaps the discriminatory content of a statement. That's the sense in which a non-publisher can cause a discriminatory ad, while one who causes the forbidden content may not be a publisher. Nothing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination; for example, craigslist does not offer a lower price to people who include discriminatory statements in their postings.

Mazur v. eBay

Mazur v. eBay Inc., 2008 WL 618988 (N.D. Cal. March 4, 2008) [11]
Section 230 case distinguishing between representation made by eBay and those based on user feedback.

On August 2, 2007 plaintiff Michele Mazur (“Mazur” or “plaintiff”), on behalf of herself and others similarly situated, brought suit against eBay Inc. (“eBay”) and Hot Jewelry (“HJA”) accusing the latter of shill bidding and the former of acquiescing in the same. Now before the court are both defendants' motions to stay pending arbitration, eBay's motion to dismiss and plaintiff's motion to strike a declaration submitted by HJA . . . [T]o the extent plaintiff seeks to hold eBay liable for information provided by HJA, eBay is immune from liability. See 47 U.S.C. § 230(e)(3) . . . [E]Bay, however, may be both an interactive computer service as well as an information content provider. See Anthony v. Yahoo! Inc., 421 F.Supp.2d 1257, 1263 (N.D.Cal.2006) (Whyte, J.) (“It is not inconsistent for eBay to be an interactive service provider and also an information content provider; the categories are usually not mutually exclusive. The critical issue is whether eBay acted as an information content provider with respect to the information that [plaintiff] claim[s] is false or misleading.”). Plaintiff seeks to hold eBay liable for misconduct with respect to eBay's own statements regarding the safety, circumstances and caliber of its live auctions. The CDA does not immunize eBay for its own fraudulent misconduct . . . Though eBay styles safety as a screening function whereby eBay is responsible for the screening of safe auctioneers, this court is unconvinced. eBay's statement regarding safety affects and creates an expectation regarding the procedures and manner in which the auction is conducted and consequently goes beyond traditional editorial discretion.

February 2008

New Section 230 cases

Global Royalties, Ltd. v. Xcentric Ventures, LLC

Global Royalties, Ltd. v. Xcentric Ventures, LLC, 2008 WL 565102 (D. Ariz. Feb. 28, 2008) [12]

Brokers of investments in gemstones brought defamation action against operators of website where visitors were invited to post consumer complaints, arising from allegedly defamatory content posted in the website by a visitor. The District Court, Frederick J. Martone, J., 2007 WL 2949002, granted operators' motion to dismiss with leave to amend. After brokers filed amended complaint, operators moved to dismiss . . . Plaintiffs, Global Royalties, Ltd., contend that CDA immunity does not protect defendants, Xcentric Ventures, LLC., because they failed to remove the defamatory content after Sullivan, the author, asked them to do so . . . The most analogous cases address whether CDA immunity continues to protect a website operator who is on notice that a posting is potentially defamatory. It is well established that it does. Universal Commc'n Sys., Inc. v. Lycos, 478 F.3d 413, 420 (1st Cir.2007) . . . We conclude that liability based on an author's notice, workable or not, is without statutory support and is contrary to well-settled precedent that the CDA is a complete bar to suit against a website operator for its “exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content.” Zeran, 129 F.3d at 330 . . . Plaintiffs' next contend that defendants themselves constitute an “information content provider” with respect to the posted content . . . They allege that defendants use Ripoff Report messages as leverage to coerce targeted businesses to pay for defendants' Corporate Advocacy Program, which purports to help investigate and resolve posted consumer complaints. Essentially, plaintiffs allege that defendants encourage defamatory postings from others for their own financial gain and, therefore, are partly responsible for the “creation or development” of the messages . . . 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. Essentially, that is plaintiffs' position. After all, plaintiffs have not alleged that defendants solicited Sullivan's postings in particular, or that they specifically solicited any postings targeting Global. Nor have they alleged that defendants altered Sullivan's comments, or had any more than the most passive involvement (providing a list of possible titles) in composing them . . . Unless Congress amends the statute, it is legally (although perhaps not ethically) beside the point whether defendants refuse to remove the material, or how they might use it to their advantage.

Curran v., Inc.

Curran v., Inc., 2008 WL 472433 (S.D. W.Va. Feb. 19, 2008)

According to plaintiff Erik Curran (“Curran”) in his two-count amended complaint, defendants used plaintiff's likeness for their financial gain in the sale of their books, t-shirts, toys, and dolls without his consent and without providing him monetary compensation. (citation omitted). Defendants have not disputed that plaintiff was in the West Virginia National Guard and that the image or likeness in question was taken while Curran was deployed in a combat zone. (citation omitted) . . . Plaintiffs allege the following two counts against all defendants: Invasion of Right of Publicity (Count I) and Invasion of Right of Privacy (Count II) . . . In West Virginia, a clear line has been drawn between the two rights. Crump, 173 W. Va. at 714 n. 6, 320 S.E.2d at 85 n. 6. “The right of privacy protects individual personality and feelings, the right of publicity protects the commercial value of a name or likeness.” Id. The Eleventh Circuit has explained . . . CaféPress asserts that § 230 of the Communications Decency Act grants it federal immunity from tort liability and preempts Counts I and II. As the Ninth Circuit notes, CDA immunity exists for both right of publicity claims (such as Count I), see Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 n. 5 (9th Cir.2007), and right of privacy claims (such as Count II), see Carfano v., Inc., 339 F.3d 1119, 1125 (9th Cir.2003) . . . In response to CaféPress's argument that the CDA provides immunity, the plaintiff contends first, an affirmative defense such as CDA immunity is not an appropriate basis for dismissal on a Rule 12(b)(6) motion, and second, that the CDA does not provide immunity for CaféPress as a manufacturer and joint venture partner with a non-defendant third party using plaintiff's image to sell t-shirts. (citation omitted) . . . With respect to the plaintiff's first retort, immunity pursuant to § 230(c) of the CDA constitutes an affirmative defense. Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir.2003). This affirmative defense is generally not fodder for dismissal under Rule 12(b)(6) . . . Accordingly, CaféPress's terms of service webpage is not being considered in deciding the 12(b)(6) motion. CDA immunity is a question awaiting discovery and exploration, though plaintiff faces an uphill battle given the broad grant of immunity conferred by § 230, as interpreted in the seminal case of Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir.1997), cert. denied, 524 U.S. 937 (1998) . . . Because the court finds there is no basis upon which § 230 CDA immunity may be conferred at this time, there is no need to address the merits of plaintiff's second response that CDA immunity is unavailable inasmuch as plaintiff claims CaféPress participated in a joint venture.

Gregerson v. Vilana Financial, Inc.

Gregerson v. Vilana Financial, Inc., 2008 WL 451060 (D. Minn. Feb. 15, 2008)[13]

Plaintiff maintains a website where he publishes his photography, including the Skyline and Kenwood photos. The website, Phototour of Minneapolis, can be accessed at two web addresses: (1); and (2) Plaintiff uses the website to publish his photographs and as a medium for his stock photography business. Persons interested in using Plaintiff's photographs may license them according to the terms and prices set forth on the website . . . Defendants are Minnesota corporations offering mortgage, financial, and real estate services. Andrew Vilenchik (“Vilenchik”) is the principal shareholder of both corporations . . . In May 2005, Plaintiff discovered the unauthorized use of his Skyline photo by Defendants in a Vilana Financial advertisement printed on the inside cover of the 2005-06 Qwest Dex phone book . . . Plaintiff testified that Qwest printed approximately 500,000 copies of the phone book containing Defendants' advertisement. The image in the Qwest advertisement is cropped so that the watermark with Plaintiff's web address does not appear on the photo . . . Defendants contend there was no willful infringement of Plaintiff's copyright, because they believed they validly licensed the Skyline and Kenwood photos from an individual named “Michael Zubitskiy” (“Zubitskiy”) . . . The Court finds there is no credible evidence to support a belief that “Zubitskiy” exists or was the source of the controverted photos . . . After Defendants refused to pay Plaintiff the amount requested in his June 6, 2005, letter, Plaintiff posted on his website an essay about the dispute and a picture of Vilenchik. Plaintiff has continued to use his website as a forum for discussing his dispute with Defendants. In addition to posting essays regarding the dispute, Plaintiff has maintained a comment section in which visitors to his website may post commentary. The comments posted on Plaintiff's website included criticism of Defendants by Plaintiff, comments posted by visitors to the website, and comments by Vilenchik . . . Defendants assert counterclaims of deceptive trade practices, interference with contractual and business relationships, and invasion of privacy by appropriation of Defendants' name and Vilenchik's likeness. All of Defendants' claims arise from the comments made by Plaintiff on his website, the comments made by visitors to his website, and Plaintiff's use of Defendants' name and Vilenchik's picture on his website . . . The third-party comments posted on Plaintiff's website are “information provided by another information content provider.” § 230(c)(1). Section 230 defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” § 230(f)(3). Accordingly, Plaintiff is not liable for the third-party comments posted on his website.

Whitney Information Network, Inc. v. Xcentric Ventures, LLC

Whitney Information Network, Inc. v. Xcentric Ventures, LLC 2:04-cv-47-FtM-34SPC (M.D. Fl. Feb 15, 2008)[14]. Discussion of '' dicta in Fair Housing Council of San Fernando Valley v., 506 F.3d 716 (9th Cir. 2007).

WIN, a Colorado corporation, provides post-secondary educational and training products and services in the areas of real estate investing, business development, financial investment and asset protection real estate . . . Xcentric, is an Arizona limited liability company that operates a website known as “The Rip-Off Report” (“ROR”) which is located at “” and “” . . . In the Motion, Defendants ask the Court to enter an Order granting summary judgment in the instant case . . . In their motion for summary judgment, Defendants argue that the CDA bars WIN’s defamation claim . . . WIN argues that Defendants are not protected by the CDA because the undisputed facts establish that they are responsible, in whole or in part, for the creation or development of the defamatory postings on the ROR website . . . Alternatively, WIN argues that a genuine issue of material fact exists as to Defendants’ activities based upon the testimony of Woodard . . .WIN contends that the following activities foreclose Defendants from being immune from liability in the instant action: (1) on the ROR website, Defendants actively solicit visitors to post reports about companies that rip-off consumers; (2) Defendants take an active role in shaping the content of the postings on the ROR website by providing guidance to users regarding what to think about in preparing their reports and what type of reports are selected as “Top Rip Off Reports”; (3) Magedson sells a “Revenge Guide” on the ROR website; (4) Defendants sell advertising and solicit donations on the ROR website; and (5) Defendants offer the CAP Program to companies who wish to avoid having reports posted about them on the ROR website.

The Court finds that, “WIN simply has not provided the Court with any evidence to create a genuine issue of fact as to whether Defendants played a role in creating or developing the postings regarding WIN that are the subject of the instant action. The Court finds the absence of such a conflict in the record to be fatal to WIN’s defamation claim. “

Further, “the Court finds that the deposition of Woodard does not create a genuine issue of material fact sufficient to warrant the denial of the motion for summary judgment.”

John Doe Anti-Terrorism Officer v. City of New York

John Doe Anti-Terrorism Officer v. City of New York, No. 06-cv-13738 (S.D.N.Y. Feb. 6, 2008). [15] 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 [16] [17]

In a complaint dated December 5, 2006 (the “Complaint”),

Plaintiff John Doe Anti-Terrorism Officer (“Plaintiff”), alleges that he was the victim of a hostile work environment created by Defendants the City of New York and Bruce Tefft (“Tefft”). Specifically, Plaintiff, an Arab-American, alleges that he was forced to read almost daily emails sent by Tefft, a counter- terrorism adviser hired by the New York City Police Department (“NYPD”), that contained racially and religiously discriminatory content targeted at Arabs and Muslims. Tefft filed a motion to dismiss on February 14, 2007 that is currently before the Court.

Tefft has moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6). He asserts five grounds for dismissing Plaintiff’s claims: (1) the court lacks personal jurisdiction over him; (2) the First Amendment bars the employment discrimination claims brought against him; (3) Plaintiff’s claims against him are barred by the Communications Decency Act; (4) Plaintiff fails to state a claim under state and federal employment discrimination laws because neither the state nor federal provisions allow suits against individuals; and (5) he is a federal employee under the Federal Tort Claims Act and, therefore, the United States is the proper defendant in this case.

Regarding the 3rd ground, the court found that:

Tefft’s attempt to seek shelter under this statute for the emails he sent as an individual is misguided . . . Tefft’s argument that his emails were akin to a blog, website, or listserv because he forwarded third-party content that he found relevant or interesting also fails. When Tefft attached his own commentary to his listserv, he ceased to be a passive host of third-party information . . . Tefft’s argument also fails because the statute is clearly not meant to immunize his conduct from liability. The portion of the statute that includes “users[s] of interactive computer services” cannot be interpreted to apply to Tefft’s conduct. Doing so would exempt virtually all Internet use from liability, expanding the statute’s reach beyond that which Congress intended . . . Thus, the CDA does not compel this Court to dismiss Plaintiff’s claims.

Krinsky v. Doe

Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008) [18] 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."

Plaintiff attempted to discover the identity of 10 of the pseudonymous posters by serving a subpoena on the message-board host, Yahoo!, Inc. (Yahoo!). Defendant "Doe 6" moved to quash the subpoena, but the trial court denied the motion. Doe 6 appeals, contending that he had a First Amendment right to speak anonymously on the Internet . . . Seeking damages and an injunction, plaintiff asserted two causes of action in the Florida complaint. All 10 defendants were accused of intentional interference with a "contractual and/or business employment relationship" between plaintiff and SFBC. Nine of the defendants were accused together of libel based on false and misleading Internet statements imputing dishonesty, fraud, improper professional conduct, and criminal activity to plaintiff . . . Common to most courts considering the issue is the necessity that the plaintiff make a prima facie showing that a case for defamation exists. Requiring at least that much ensures that the plaintiff is not merely seeking to harass or embarrass the speaker or stifle legitimate criticism. Even the decisions imposing a motion-to-dismiss obligation nonetheless require " ' some showing' " that the tort took place . . . We therefore agree with those courts that have compelled the plaintiff to 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. Where it is clear to the court that discovery of the defendant's identity is necessary to pursue the plaintiff's claim, the court may refuse to quash a third-party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has been made. When there is a factual and legal basis for believing libel may have occurred, the writer's message will not be protected by the First Amendment . . . We likewise conclude that the language of Doe 6's posts, together with the surrounding circumstances -- including the recent public attention to SFBC's practices and the entire "SFCC" message-board discussion over a two-month period -- compels the conclusion that the statements of which plaintiff complains are not actionable. Rather, they fall into the category of crude, satirical hyperbole which, while reflecting the immaturity of the speaker, constitute protected opinion under the First Amendment . . . We thus conclude that Doe 6's online messages, while unquestionably offensive and demeaning to plaintiff, did not constitute assertions of actual fact and therefore were not actionable under Florida's defamation law.21 Because plaintiff stated no viable cause of action that overcame Doe 6's First Amendment right to speak anonymously, the subpoena to discover his identity should have been quashed.


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

Murawski v. Pataki

Murawski v. Pataki, 2007 U.S. Dist. LEXIS 72749 (S.D.N.Y. Sept. 26, 2007).[19]

Independent party candidate, who sought access to gubernatorial ballot, brought pro se action against state Board of Elections and various state officials, city board of elections and various city officials, and various private defendants, seeking a declaration that state Election Law was largely unconstitutional. Defendants moved to dismiss and private defendant petitioned for sanctions . . . Plaintiff brings claims against Yahoo!, Inc., pursuant to 42 U.S.C. § 1983, for violating his First Amendment right to free speech, because “he was not permitted to post email messages to Yahoo! groups to which he belonged at critical times” during the 2006 gubernatorial election. (citation omitted). The Complaint does not describe in what way Yahoo!, Inc. prevented plaintiff from posting e-mail messages . . . Plaintiff's allegations must be dismissed because Yahoo!, Inc. is a private, for-profit company and is not subject to constitutional free speech guarantees . . . Plaintiff brings two claims against defendant Ronald Gunzburger. First, plaintiff alleges that Gunzburger refused to list plaintiff on his “influential political website,” http:// Politics 1. com, in violation of plaintiff's First Amendment rights. Second, plaintiff alleges that once Gunzburger listed plaintiff on his website, he defamed plaintiff by placing plaintiff's name in a list directly below a member of the Communist Party, causing plaintiff's name to appear with the word “communist” on Google, Yahoo!, and search engines. (citation omitted) . . . Gunzburger's initial failure to list plaintiff on his private website fails for the same reason that plaintiff's claim against Yahoo!, Inc. fails-plaintiff is a private actor and his site is a private website and therefore neither are subject to constitutional free speech guarantees. Indeed, plaintiff does not even allege that Gunzburger is a state actor or that he was acting under color of state law. Accordingly, plaintiff's First Amendment claims against Gunzburger are dismissed . . . In the instant case, plaintiff's libel claim is meritless. Significantly, plaintiff does not allege that Gunzburger ever stated on his website that plaintiff was a communist . . . As described already, plaintiff requested that remove http:// Politics 1. Com from its directory because of the association of his name in's search results with the Communist Party . . . Plaintiff's claims against IAC are barred by the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230, et seq. Section 230 provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” id. § 230(c)(1), and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section,” id. § 230(e)(3). Section 230(c) thus immunizes internet service providers from defamation and other, non-intellectual property, state law claims arising from third-party content . . . Nor can be held liable for failing to keep any alleged promise to remove from its directory. (citation omitted). Deciding whether or not to remove content or deciding when to remove content falls squarely within's exercise of a publisher's traditional role and is therefore subject to the CDA's broad immunity.

Doe v. Gonzales

Doe v. Gonzales, 500 F. Supp. 2d 379, 425 (S.D.N.Y. 2007) (NSL statute unconstitutional).

Civil liberties organizations and unidentified internet service provider (ISP) that had received Federal Bureau of Investigation (FBI) national security letter (NSL) requiring production of customer records brought action challenging Patriot Act provisions authorizing such letters and permanently barring disclosure of their receipt. The United States District Court for the Southern District of New York, Marrero, J., 334 F.Supp.2d 471, declared statute unconstitutional as applied to ISP and statute's gag order provision unconstitutional on its face. The United States Court of Appeals for the Second Circuit, 449 F.3d 415, vacated decision and remanded for further consideration in light of revised provisions in USA Patriot Improvement and Reauthorization Act of 2005. On remand, plaintiffs filed amended complaint challenging constitutionality of revised nondisclosure provisions and newly added provisions governing judicial review of NSLs. Government withdrew NSL information request but not nondisclosure order. Plaintiffs moved for partial summary judgment, and government defendants cross-moved for dismissal or, in alternative, summary judgment . . . [T]he Court concludes that § 2709(c) is unconstitutional under the First Amendment because it functions as a licensing scheme that does not afford adequate procedural safeguards, and because it is not a sufficiently narrowly tailored restriction on protected speech. Because the Court finds that § 2709(c) cannot be severed from the remainder of the statute, the Court finds the entirety of § 2709 unconstitutional. Additionally, the Court concludes that § 3511(b) is unconstitutional under the First Amendment and the doctrine of separation of powers.

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.[20]

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."[21]

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.

N.D. Ohio Case 3:07-cv-00604-JZ [22]. 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). p] 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.).[23] 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). [24] 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, sued YouTube for trademark infringement, trespass to chattels, and other related claims. They alleged that millions Internet users seeking to find YouTube were overloading’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’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., Google, et a __ F.3d __ (9th Cir. 2007).[25] Third-parties analysis: [26] [27] [28]

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." not Immune Under 230

Fair Housing v., __ F.3d __ (9th Cir. 2007) [29]. Third-party coments [30] [31] [32] [33]

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 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

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."

Before the court is Defendant Google, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint, or in the alternative, to Transfer, which motion the court converted to a Motion for Summary Judgment. Also before the court is Plaintiff Lawrence E. Feldman's Cross-Motion for Summary Judgment. The ultimate issues raised by the motions and determined by the court are whether a forum selection clause in an internet “clickwrap” agreement is enforceable under the facts of the case and, if so, whether transfer of this case to the Northern District of California is warranted . . . The District Court, Giles, J., held that: (1) advertiser had notice of and had accepted terms of advertising contract, including forum selection clause;(2) contract was binding, even though there was mechanism for determining advertising fee, rather than specified fee;(3) contract was not procedurally or substantively unconscionable;(4) forum selection clause was valid and reasonable, allowing for venue transfer; and(5) private and public factors favored transfer.

COPA Struck Down Again

ACLU v. Gonzales

ACLU v. Gonzales, No. 98-559 (E.D. Pa. March 22, 2007). On remand, COPA is struck down by the district court.[34]

At issue in this case is the constitutionality of the Child Online Protection Act, 47 U.S.C. § 231 (“COPA”) and whether this court should issue a permanent injunction against its enforcement due to its alleged constitutional infirmities. COPA provides both criminal and civil penalties for transmitting sexually explicit materials and communications over the World Wide Web (“Web”) which are available to minors and harmful to them. 47 U.S.C. § 231(a) . . . According to House Report 105-775, “[t]he purpose of [COPA] is to amend the Communications Act of 1934 [47 U.S.C. § 151, et seq.] by prohibiting the sale of pornographic materials on the World Wide Web (or the Web) to minors.” H.R. Rep. 105-775, at *5 . . . The intended “effect of [COPA] is simply to reorder the process in such a way as to require age verification before pornography is made available, essentially requiring the commercial pornographer to put sexually explicit images ‘behind the counter.’” Id. at *15. . . . Because COPA suppresses a large amount of speech that adults have a constitutional right to receive, under the strict scrutiny standard, COPA may only be upheld as constitutional if defendant meets his burden of proving that COPA is narrowly tailored to the compelling interest that COPA was enacted to serve and there are no less restrictive alternatives that would be at least as effective in achieving that interest. Ashcroft, 542 U.S. at 665 (citing Reno, 521 U.S. at 874) . . . After a trial on the merits, for the reasons that follow, notwithstanding the compelling interest of Congress in protecting children from sexually explicit material on the Web, [the court concludes] today that COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not narrowly tailored to Congress’ compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad . . . As a result, [the court issued] a permanent injunction against the enforcement of COPA.

9th Cir. Holds 230 protects versus state IP claims, construes DMCA

Perfect 10, Inc. v. CCBill, LLC

Perfect 10, Inc. v. CCBill, LLC, 340 F.Supp.2d 1077 (C.D.Cal. 2004).

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, 488 F.3d 1102 (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 and here.

4th Cir Affirms Denial of PI for Blogger TM Use

BidZirk, LLC v. Smith

BidZirk, LLC v. Smith, (Slip Op.), 2007 WL 664302 (4th Cir. March 6, 2007)

BidZirk, LLC, Daniel G. Schmidt, III, and Jill Patterson filed a complaint in federal district court alleging Phillip J. Smith's articles on his internet web log violated the Federal Trademark Dilution Act and state law. BidZirk moved for preliminary injunctive relief pursuant to 15 U.S.C. § 1116(a) (2000). Adopting the magistrate judge's recommendation, the district court denied a preliminary injunction, and BidZirk appealed. [This court] review[ed] the grant or denial of a preliminary injunction for abuse of discretion, “recognizing that preliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir.2001).

After balancing the harm to the plaintiff with the irreparable harm to the defendant, The court found “no abuse of discretion and we affirm the district court's order denying a preliminary injunction.” Bidzerk, LLC, 2007 WL 664302 at *1.

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"[35]. Opinion [36].

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

Pallorium v. Jared, G036124 (Cal. Ct. App. Jan. 11, 2007) (unpublished opinion)[37] Eric Goldman report [38]; CNET report [39]

"Jared created software that allowed third parties to check for open relay servers and that information was posted on his Web site. This qualifies as an "action taken to ... make available to information content providers or others the technical means to restrict access" to 'obscene, lewd,lascivious, filthy, excessively violent, harassing, or otherwise objectionable' material."

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.[40]

Defendant, who had been charged with computer-related theft, filed motion to suppress evidence. The Superior Court, Law Division, Cape May County, granted motion. State sought leave to appeal . . . The State appeal[ed], pursuant to leave granted, from an order suppressing evidence obtained from Comcast Internet Service, the internet service provider (ISP) for defendant Shirley Reid. The evidence consisted of information on file with Comcast that identified defendant as the user of a coded screen name . . . We deal first with the procedure utilized by the police. The subpoena issued by the Court Administrator was not in connection with any judicial proceeding; indeed, it was made returnable the same day it was issued. Clearly, it was utilized simply as a device to obtain the desired information . . . Yet, despite the invalidity of the subpoena, the judge's ruling might still be subject to reversal if defendant had no privacy interest in the information obtained from Comcast. If there were no constitutionally protected privacy interest, it would not matter how the police obtained the information. Thus, we turn to that issue . . . [W]e conclude that defendant had a reasonable expectation of privacy in her ISP account information obtained by Detective Smith from Comcast by means of the invalid subpoena. We do so treading the State constitutional path illuminated by the Court in cases such as McAllister, Hunt and Hempele, decisions which are highly protective of an individual's right to privacy even when the information sought is, of necessity, in the hands of a third-party. As the Court said in Doe, supra, 142 N.J. at 89-90, 662 A.2d 367, “[w]e have found a constitutional right of privacy in many contexts, including the disclosure of confidential or personal information” (citations omitted) . . . By her use of an anonymous ISP address,, or “screen name,” defendant manifested an intention to keep her identity publicly anonymous. She could have used her own name or some other ISP address that would have readily revealed her identity, but she did not. Having chosen anonymity, we conclude that defendant manifested a reasonable expectation of privacy in her true identity, known only to Comcast. Defendant's interest in anonymity is both legitimate and substantial, see Doe, supra, 142 N.J. at 87, 662 A.2d 367, and the data on file with Comcast fell within the concept of informational privacy, which we have earlier endorsed . . . [W]e conclude that defendant had an expectation of privacy under our State Constitution with respect to this identifying information that permitted her to challenge the manner in which it was obtained by the police. Since we also conclude that the method used by the police was unlawful, we affirm the order of suppression

Colorado case re Copyright

Shell v. Devries

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.

The court found that there are no:

allegations to support a reasonable inference that the defendants' use of the material was commercial in nature. To the contrary, the Complaint alleges that the defendants used the copyrighted portion of the plaintiff's website as an exhibit to a motion for attorneys' fees. There are no allegations that the defendants used the materials for any other purpose . . . [Further,] the materials provide a time-line of events leading up to the lawsuit as well as a time-line of events that occurred during the lawsuit. Because the materials are primarily a chronology of events, the materials are more factual in nature than creative . . . The Complaint alleges only that the defendant's use of the materials deprived the plaintiff of the income from defendants for the license fees. The Complaint does not allege that the marketability of her work is impaired. Indeed, it is impossible to imagine how the defendants' use of the materials as an exhibit to a motion for attorneys' fees could in any way impact the marketability of the materials . . . [the] analysis of the fair use factors weighs heavily in favor of the defendants. Accepting all well-pleaded allegations as true and construing all reasonable inferences in favor of the plaintiff, the Complaint alleges a fair use of the copyrighted materials. Therefore, the Complaint fails to state a claim for copyright infringement.

November 2006

California Supreme Court Decision in Barrett Case

The Supreme Court held:[41]

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."[42]

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 [43]

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.