Articles Posted in Internet Law

The Stored Communications Act (“SCA”), found at 18 U.S.C. §§ 2701-2712, establishes both a criminal offense and a civil cause of action against anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility,” and by doing so “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” Successful plaintiffs may obtain damages, equitable or declaratory relief, and reasonable attorney’s fees. (See 18 U.S.C. § 2707(b)). In the employment context, the SCA is often understood to place restrictions on those situations in which an employer can access its employees’ private email accounts (i.e., accounts maintained by third-party email service providers like Google, Microsoft, and Yahoo). A few weeks ago, the Western District of Virginia decided Hoofnagle v. Smyth-Wythe Airport Commission, in which it rejected various justifications offered by an employer for accessing a former employee’s private Yahoo! email account.

Charles H. Hoofnagle was a government employee who worked as the Operations Manager for Mountain Empire Airport in Rural Retreat, Virginia. He reported to the Smyth-Wythe Airport Commission and his duties included answering phone calls and responding to emails from the public and customers. The Commission, however, did not have in place an official policy regarding use of computers or email. The airport did not even provide employees with an email address, so Hoofnagle created a Yahoo! Mail address, charliemkj@yahoo.com, which he used for both personal and business purposes. (MKJ is the airport’s FAA idendifier code). It was this Yahoo! address that was held out to the public as an official contact for the airport and provided to nearly all vendors and customers.

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Back in 2012, the Alexandria Circuit Court ruled in an Internet defamation case that discovery could be obtained from a nonresident third party by serving a subpoena on the company’s registered agent in Virginia. That decision was reversed last week by the Virginia Supreme Court in an unambiguous ruling that is going to force a lot of Virginia attorneys to make greater use of the Uniform Interstate Depositions and Discovery Act.

I had been following this case–Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.–over the past few years with great interest, not because of the subpoena-power issue, but because the case involved some fascinating First Amendment issues and promised to offer some guidance on the correct application of Virginia’s “unmasking” statute, Section 8.01-407.1. For example, would an interactive computer service like Yelp have standing to object to complying with an enforceable subpoena by invoking the First Amendment rights of its users? Does a plaintiff need to produce evidence to meet 8.01-407.1’s “showing” requirement or can it make the required showing merely by by alleging a prima facie cause of action for defamation? In a case involving online negative reviews phrased as non-actionable statements of opinion but written anonymously by competitors hiding behind a pseudonym, how can a plaintiff demonstrate falsity (i.e., that the reviewer was not an actual customer) without an opportunity to use discovery to ascertain the poster’s true identity? The justices showed keen interest in questions like these at oral argument, but ultimately decided to save addressing them for another day.
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The Racketeer Influenced and Corrupt Organizations Act (commonly known as “RICO“) became effective on October 15, 1970. It was originally intended primarily to assist in the prosecution of mafia leaders, as it permitted them to be tried for crimes they ordered others to do rather than committed themselves. Congress never intended to limit RICO to organized crime, however. G. Robert Blakey, the primary author of the statute, once told Time Magazine, “We don’t want one set of rules for people whose collars are blue or whose names end in vowels, and another set for those whose collars are white and have Ivy League diplomas.” The statute includes a civil provision, found at 18 USC § 1964(c), that has proven particularly popular in business litigation as it allows for the recovery of treble damages and attorneys fees.

RICO makes it unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. (See 18 USC § 1962(c)). Key concepts in civil RICO cases typically include whether a true “enterprise” exists, whether the defendant has engaged in “racketeering activity,” and, if so, whether such activity constitutes a “pattern.”
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Virginia lacks an anti-SLAPP statute, but that doesn’t mean filing a frivolous lawsuit focused on eliminating criticism rather than enforcing actual legal rights can’t result in being ordered to reimburse the defendant’s legal fees. Some creative plaintiffs, finding themselves the subject of online criticism but not wanting to sue for defamation either because of an inability to satisfy the elements of the actionable libel or slander or because of other potential problems with bringing a defamation claim, have resorted to copyright law in pursuit of their goals. But as demonstrated by a recent decision of the Western District of Virginia, if the plaintiff has no valid copyright-infringement claim and/or takes unreasonable positions (either in making arguments to the court or in the process of settlement negotiations), the court has the authority not only to dismiss the case but to order the plaintiff to pay the defendant a reasonable amount of attorneys’ fees.

In Ergun M. Caner v. Jonathan Autry, the court found that “Plaintiff filed a copyright infringement suit to stifle criticism, not to protect any legitimate interest in his work” and ordered him to pay Mr. Autry $34,389.59 in attorneys’ fees and costs. The court described the facts of the case essentially as follows:
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Small businesses often find themselves the target of defamatory online reviews left by anonymous reviewers. In most cases, a subpoena can be issued to the website owner or Internet Service Provider to reveal the poster’s identity (or at least the I.P. address from which the post was written). See, for example, Yelp v. Hadeed Carpet Cleaning, in which the Virginia Court of Appeals held that Yelp could be compelled to comply with such a subpoena. Any such subpoena, however, cannot subject the recipient to undue burden. As illustrated by the recent Maryland case of In re: Subpoena of Daniel Drasin, an overreaching subpoena that places an undue burden on the recipient will be quashed.

Advanced Career Technologies, Inc. (“ACT”) sued John Does 1-10 in a Colorado federal court based on allegedly defamatory comments posted anonymously on the “Random Convergence” blog. In an attempt to discover the identity of the John Does, ACT served a third party subpoena on the blog’s administrator, Daniel Drasin, commanding him to produce any hard drives, servers and any other devices he used to administer the blog, and data stored online via website or application. Drasin moved to quash the subpoena pursuant to Federal Rule of Civil Procedure 45(c)(3) asserting that it was unreasonable, imposed an undue burden and was not likely to lead to relevant evidence.
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In yet another case involving alleged defamatory Yelp reviews, Hadeed Carpet Cleaning has filed a “John Doe” action in Alexandria Circuit Court, seeking to first learn the identities of the anonymous posters, then recover damages from them. Yelp is based in California but conducts substantial business in Virginia, so Hadeed served Yelp’s registered agent with a subpoena duces tecum seeking to identify the individuals who wrote the negative reviews. Yelp refused to comply.

Yelp objected to the subpoena on several grounds. It argued that serving a Virginia subpoena on its registered agent was insufficient to confer jurisdiction over a California company, that its advertising agreement with Hadeed required the parties to resolve their disputes in California, and that Hadeed did not meet constitutional requirements to compel Yelp to reveal the anonymous posters’ identities.

The court rejected these arguments, finding that Hadeed complied with Virginia Code § 8.01-407.1, which spells out what a party must do to discover the identities of anonymous posters on the Internet. The court found that service of a subpoena on the registered agent was sufficient to confer jurisdiction, but even if it wasn’t, Yelp would be subject to personal jurisdiction Yelp.jpganyway due to its substantial business activities in Virginia. The forum-selection clause in Yelp’s advertising agreement was inapplicable because the dispute did not arise under that contract.

Vienna, Virginia-based Immersonal, Inc., a consumer software and technology services company, has been sued for trademark infringement and related claims in Virginia federal court. Radio and Podcast personality, Ira Glass, and Chicago Public Media say Immersonal’s new “This American Startup” podcast infringes on their award-winning “This American Life” radio and podcast programs. The suit includes counts for trademark infringement and dilution, unfair competition and fraud, and violation of the Virginia Consumer Protection Act.

According to the complaint, Mr. Glass has produced, aired, promoted and distributed the radio show, “This American Life,” since 1996. The show is part of the lineup of Chicago Public Media, an Illinois not-for-profit corporation, which has owned and operated a radio station since 1990. “This American Life” is a Peabody award-winning syndicated program on contemporary American culture, including fiction and nonfiction and original monologues, mini-dramas, documentaries, music and interviews. It is also available on the internet as a podcast and is downloaded about 700,000 times per week. In many weeks, it is the ThisAmericanLife.jpgmost popular podcast in the country. The program was turned into a television show between 2006 and 2008 and garnered several Emmy awards.

The plaintiffs allege further that the mark, “This American Life,” has been in continuous use since 1996 in entertainment and in connection with the audio program. The plaintiffs co-own this and related marks and have expended significant money and air time to promote and advertise their marks in various media. They say these efforts, combined with quality programming, have led consumers to associate “This American Life” with quality service. In turn, this acceptance and good will has opened the door to additional business opportunities associated with the marks. The plaintiffs claim the mark is famous given its duration of use, reach, extensive consumption and recognition.

As noted previously on this blog, the Anticybersquatting Consumer Protection Act (“ACPA”) permits litigation to be filed against an infringing domain name itself, not just against the owner of the domain name. Which entity should file responsive pleadings in such a case, the domain name or its owner? In Sauikit LLC v. Cydia.com, the Eastern District of Virginia opined that form should not prevail over substance.

Saurikit brought an action against the domain name cydia.com alleging violations of the ACPA. Defendant’s Answer stated that Cykon Technology (“Cykon”) owned the domain name, but the defendant’s attorney signed the answer “Counsel for Cydia.com” instead of “Counsel for Cykon.” Saurikit moved for judgment on the pleadings, arguing that there was no answer on file by a claimant since the property rather than the owner of the property filed the Answer.

A successful judgment on the pleadings requires the moving party to demonstrate that no issues of material fact exist and that it is entitled to judgment as a matter of law. In deciding a motion for a judgment on the pleadings, courts view the facts in the light most favorable to the non-moving party.

“Grandma Got Run Over by a Reindeer” is one of the most popular holiday songs around and is played on radio stations across the country every Christmas season. It is also now the subject of contentious copyright litigation after a federal judge ruled recently that litigation over an allegedly unauthorized YouTube video containing audio of the song can continue despite the absence of a co-owner of the copyright.

Elmo Shropshire owns the copyright to the song along with Patsy Trigg d/b/a Kris Publishing. The copyright was registered with the U.S. Copyright Office on December 27, 1979. The defendant posted a video on YouTube–which has since been removed due to the pending litigation–which combined Christmas-related pictures with audio of a Canadian musical group, “The Irish Rovers,” singing the Grandma song. Shropshire contacted the poster and requested that he either pay the licensing fee or immediately remove the video. The poster refused.

Shropshire filed a copyright infringement suit in federal court, but his first (amended) complaint was dismissed because, among other reasons, Shropshire did not name Trigg or Kris Publishing in the lawsuit. The court gave him permission to amend, however, and the second time around, Shropshire named Kris Publishing as a defendant, but Kris Published settled out and was promptly dismissed. The defendant then filed a motion to dismiss, claiming that Patsy Trigg d/b/a Kris Publishing was a screenie.jpgnecessary and indispensable party and thus the suit could not go forward without her. The Court disagreed.

Does an employer have any sort of ownership interest in its employees’ tweets or Twitter following? This very current social-media question may be tested in a lawsuit originally filed last July in federal court in California by PhoneDog, a South Carolina-based company that reviews mobile phones and services online, against former employee Noah Kravitz. An amended complaint in the case, filed on November 29, 2011, has attracted considerable media attention.

When Kravitz worked for PhoneDog as a product reviewer and video blogger from 2006 to 2010, he tweeted under the handle @PhoneDog_Noah and attracted some 17,000 followers for his comments and opinions on Twitter. When he left the company, he continued tweeting under the name @NoahKravitz. But he didn’t create a new account with that name; instead, he kept the account (with all its followers) and just changed the Twitter handle to @NoahKravitz. Eight months later, PhoneDog sued Kravitz, alleging that his continued use of the account and his tweeting to his followers constitute a misappropriation of PhoneDog’s trade secrets, intentional interference with prospective economic relationships, and conversion. Phone Dog said that it had suffered loss of advertising revenue as a result and that Kravitz “was unjustly enriched by obtaining the business of PhoneDog’s Followers.”

PhoneDog essentially claims ownership rights due to the fact that it directs its employees to maintain Twitter accounts and instructs them to tweet links to PhoneDog’s website, thus increasing PhoneDog’s page views and generating advertising Kravitz.jpgrevenue for PhoneDog. PhoneDog said in the complaint that since Kravitz now works for TechnoBuffalo, a competitor of PhoneDog, he is exploiting PhoneDog’s confidential information on behalf of a competitor. PhoneDog is seeking $340,000 in damages — $2.50 per month per Twitter follower for eight months. Although PhoneDog said in the complaint that “industry standards” peg the value of a Twitter follower at $2.50 per month, the company did not give a source for that estimate. Nor did PhoneDog attempt to distinguish between people who followed Kravitz because of his connection to PhoneDog and those followers who are merely friends of his or enjoy his commentary.

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