Cyber Lawyer Blog

Copyright Law: Pornographers Following RIAA's Shakedown Tactics

djr@icyberlaw.com (Cyber Lawyer) — Thu, 06 Oct 2011 19:46:28 GMT

At this Internet law firm, we are no strangers to copyright litigation. From whether website reviews are copyrightable to defending individuals caught in the RIAA's use of the Department of Justice to do RIAA's litigation in the form of criminal copyright infringement prosecutions. Now the pornographers are here and they are taking a page out of the RIAA's playbook. It appears that the pornographers' strategy is to file lawsuits against unidentified parties, issue subpoenas and follow up with threatening letters to the identified individuals demanding payment of a few thousand dollars. These individuals are accused of utilizing bit torrent software to infringe on the copyrights. Multiply the $2k to $3k requested from each identified "John Doe" times a few hundred defendants in several jurisdictions and the pornographers can feasibly make more money through lawsuits than through selling their product.

To further the strategy, pornographer Patrick Collins filed an action in the U.S. District Court for the Eastern District of Virginia against 58 different unidentified (John Doe) defendants. The case is Civil Action No: 3:11CV531. We were retained by one of the "John Doe" Defendants. We identified a number of problems with Plaintiff's case, not the least of which is the joinder of totally unrelated parties on the same litigation. After seeing this situation, we filed a Motion to Quash on behalf of our client. Some excerpts of the filing follow below:

Over the past several years, copyright owners across the nation, even those such as Plaintiff, who is yet to receive a copyright registration for its hardcore pornography, have attempted to take advantage of federal joinder rules in order to sue numerous John Doe defendants within a single complaint. These complaints are for copyright infringement via the Internet, and the complaints generally allege the use of peer-to-peer programs such as BitTorrent to download and/or upload copyrighted works. Some of these cases attempt to join defendants by the dozens, but many extend to hundreds and even thousands of unnamed defendants. See infra. Some courts have opined that the rationale for the joinder of multiple defendants in these copyright cases is an attempt by plaintiffs to “identify hundreds of Doe defendants through pre- service discovery and facilitate mass settlement.” See, for example, On the Cheap, LLC v. Does 1-5011, Case No. C10-4472, *11 (Zimmerman, M.J.) (N.D. Cal. Sept 6, 2011) (quoting IO Group, Inc. v. Does 1-435, 2011 U.S. Dist. LEXIS 14123, *9 (N.D. Cal. Feb. 3, 2011)).

Doe Defendant notes that this is not Plaintiff's first mass-defendant copyright infringement lawsuit. For example, a similar copyright infringement suit regarding a different pornographic video was filed by Plaintiff in the Northern District of West Virginia against 281 John Doe defendants. In that case, all John Doe defendants except for John Doe 1 were severed on the basis of misjoinder, and subpoenas for the identities of the severed defendants were quashed. See Patrick Collins, Inc. v. Does 1-281, Case No. 3:10-cv-00091, *3-4 (Bailey, J.) (N.D. W.V. Dec 16, 2010). It appears that after failing in West Virginia, Plaintiff now asserts similar claims before this Court.
.
.
.

Under the Federal Rules of Civil Procedure, joinder of defendants is appropriate where two factors are met: 1) “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and 2) “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). If it is clear that misjoinder has occurred, then Fed. R. Civ. P. 21 permits a court, by a party’s motion or sua sponte, to drop parties or to sever claims. “On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.” Fed. R. Civ. P. 21.

.
.
.

The gravamen of Plaintiff's Complaint is that John Doe Defendants all used a peer-to-peer client called BitTorrent to download and simultaneously upload the pornographic video. Essentially, Plaintiff alleges that all the John Doe Defendants “downloaded” the adult film and then “distributed” parts of that film to IPP, Limited, a company retained by Plaintiff to identify copyright infringement. Comp. ¶¶ 36-40. Yet other than some conclusory language regarding contributory copyright infringement and mischaracterizations of the application of BitTorrent “swarms,” discussed infra, there are no allegations that the John Doe Defendants acted in concert to infringe Plaintiff's alleged copyright or that they were part of the same “transaction, occurrence, or series of transactions or occurrences” as required under Fed. R. Civ. P. 20(a)(2).

Plaintiff’s entire Complaint rests upon the premise that merely using BitTorrent to download the same file is sufficient to join different parties together as defendants in a single lawsuit.

However, numerous courts across the country have held that allegations that John Doe defendants “used the same peer-to-peer network to infringe a plaintiff’s copyrighted works are insufficient for joinder of multiple defendants under [Fed. R. Civ. P.] 20.” Boy Racer, Inc. v. Does 1-60, Case No. 3:11-cv-01738, *2 (Illston, J.) (N.D. Cal. Aug 19, 2011). The Northern District of California summarized some of these holdings:

... Laface Records, LLC v. Does 1-38, 2008 U.S. Dist. LEXIS 14544 (E.D.N.C. Feb. 27, 2008) (ordering the severance of claims against thirty-eight defendants where plaintiff alleged each defendant used the same ISP as well as the same peer-to-peer network to commit the alleged copyright infringement, but there was no assertion that the multiple defendants acted in concert); Interscope Records v. Does 1-25, 2004 U.S. Dist. LEXIS 27782 (M.D. Fla. Apr. 1, 2004) (magistrate recommended sua sponte severance of multiple defendants in action where only connection between defendants was allegation that they used same ISP and peer-to-peer network to conduct copyright infringement); see also BMG Music v. Does, 2006 U.S. Dist. LEXIS 53237, No. 06-01579 (Patel, J.) (N.D. Cal. July 31, 2006) (finding improper joinder of four Doe defendants where the complaint alleged that each defendant used the same ISP to engage in distinct acts of infringement on separate dates at separate times, and there was no allegation that defendants acted in concert); Twentieth Century Fox Film Corp. v. Does 1-12, No. C 04- 04862 WHA (N.D. Cal. Nov. 16, 2004) (Alsup, J.) (severing twelve Doe defendants in a copyright infringement case where although defendants used the same ISP to allegedly infringe motion picture recordings, there was no allegation that the individuals acted in concert); cf. In the Matter of DIRECTV, INC. 2004 U.S. Dist. LEXIS 24263, No. 02-5912 (Ware, J.) (N.D. Cal. Jul. 26, 2004) (severing and dismissing hundreds of defendants in a case alleging that defendants purchased and used modified access cards and other pirate access devices to permit view of plaintiff's programming without authorization).

Boy Racer, Case No. 3:11-cv-01738 at *2-3. Other cases holding similarly include multiple West Virginia cases (see, for example, Patrick Collins, Case No. 3:10-cv-00091, *3; Third World Media, LLC v. Does 1-1,243, Case No. 3:10-cv-00090, *3 (Bailey, J.) (N.D.W.V. Dec. 16, 2010); Combat Zone, Inc. v. Does 1-245, Case No. 3:10-cv-00096, *3 (Bailey, J.) (N.D.W.V. Dec. 16, 2010); and Axel Braun Production v. Does 1-7,098, Case No. 3:10-cv-00112, *3 (Bailey, J.) (N.D.W.V. Dec. 23, 2010), all holding that “defendants’ alleged use of some of the same ISPs and P2P networks to commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20”); Lightspeed v. Does 1-1,000, 2011 U.S. Dist LEXIS 35392 (N.D. Ill. March 31, 2011) (finding misjoinder in a multiple-defendant copyright case involving BitTorrent); multiple cases from Texas (see, for example, Funimation Entertainment v. Does 1- 1337, Case No. 3:11-cv-00147-F, *3 (Furgeson, J.) (N.D. Tx. Feb. 10, 2011), holding that the plaintiff failed to allege any relationship among the defendants or any allegations that defendants acted in concert: “Plaintiff makes no allegation in this case that the claims against the joined defendants ‘arise out of the same transaction, occurrence, or series of transactions or occurrences.’ Instead, it seems that the copyright infringement claim against each Defendant is based on the individual acts of each Defendant”); and multiple California cases (see infra). In summation, courts from multiple jurisdictions have repeatedly concluded that “merely committing the same type of violation in the same way does not link defendants together for purposes of joinder.” Laface Records, 2008 WL 544992 at *2.

The Northern District of California has severed defendants and quashed subpoenas in multiple copyright infringement cases involving BitTorrent, including Boy Racer, Case No. 3:11- cv-01738; IO Group, Inc. v. Does 1-19, 2010 U.S. Dist. LEXIS 133717 (N.D. Cal. Dec. 7, 2010); and IO Group, Inc. v. Does 1-435, 2011 U.S. Dist. LEXIS 14123 (N.D. Cal. Feb. 3, 2011). In IO Group v. Does 1-19, the plaintiff claimed that nineteen different defendants reproduced eighteen different copyrighted films on fifteen different days. “The Court found that the plaintiff’s allegations that the defendants conspired with each other to provide the infringing reproductions of the works were ‘wholly conclusory and lack[ed] any facts to support an allegation that defendants worked in concert to violate plaintiff’s copyrights’.” Boy Racer, Case No. 3:11-cv- 01738 at *3 (quoting IO Group v. Does 1-19, 2010 U.S. Dist. LEXIS 133717 at *8-9). “The Court held that the ‘only factual allegation connecting the defendants’ – the allegation that they all used the same peer-to-peer network to reproduce and distribute the plaintiff’s copyrighted work – was insufficient for joinder of multiple defendants under Rule 20.” Id. “Similarly, in IO Group v. Does 1-435, the Court severed the Doe defendants, holding that use of the same ISP and peer-to-peer network was not sufficient for joinder, and that any ‘potential conspirator liability, based solely on use of a P2P network,’ does not stretch ‘so far as to make joinder of all users of a P2P network in one action proper.’” Id. at *4 (quoting IO Group v. Does 1-435, 2011 U.S. Dist. LEXIS 14123 at *15-16).

As the Northern District of California noted, “Courts have held specifically that the nature of the BitTorrent protocol does not make joinder appropriate where defendants allegedly used BitTorrent to infringe copyrighted works.” Boy Racer, Case No. 3:11-cv-01738 at *4. “In Diabolic Video Productions, the plaintiff alleged that 2,099 different defendants ‘acted in cooperation’ with one another ‘by agreeing to provide, and actually providing on a P2P network,an infringing reproduction’ of the plaintiff’s work.” Id. (quoting Diabolic Video Productions v. Does 1-2,099, 2011 U.S. Dist. LEXIS 58351, *10 (Grewal, M.J.) (N.D. Cal. May 31, 2011)). The plaintiff in Diabolic Video claimed that the “[d]efendants joined in a common ‘swarm,’ . . . that qualifies as the single transaction or series of closely-related transactions recognized under Rule 20.” Id. (quoting Diabolic Video, 2011 U.S. Dist. LEXIS 58351 at *10). “However, the court found that, apart from the allegation that the defendants all used the same peer-to-peer network to reproduce and distribute the plaintiff’s copyrighted work, the plaintiff offered ‘no allegations whatsoever to support its theory of a single or closely-related transactional theory.’” Id. (quoting Diabolic Video, 2011 U.S. Dist. LEXIS 58351 at *10).

Boy Racer is on point. In that case, the Northern District of California concluded that the plaintiff failed to “plead facts showing that any particular defendant illegally shared plaintiff’s work with any other particular defendant.” Boy Racer, Case No. 3:11-cv-01738 at *5. Similarly, in this case, Plaintiff has not alleged that the John Doe Defendants shared the pornographic video with other John Doe Defendants; the Complaint merely alleges that all John Doe Defendants apparently connected with IPP, Limited’s computer on different dates and times. Comp. Exhibit A. The Northern District of California court also noted, “The Exhibit attached to plaintiff’s complaint indicates that defendants were allegedly present in BitTorrent swarms on approximately 18 different dates, and that defendants used approximately nine different ISPs.” Id. at *5-6. In the present case, Plaintiff, apparently realizing that it must allege some common transaction or occurrence in order to survive a motion to quash, attempts to portray all the John Doe Defendants are being a part of a single swarm. Comp. ¶¶ 31-33, 55-58. However, this claim is contradicted by Exhibit A of Plaintiff's Complaint, which shows that John Doe Defendants allegedly communicated with IPP, Limited’s computer on multiple dates spanning a period of two months. Notably, the date and time that Doe Defendant allegedly communicated with IPP, Limited’s computer, July 15, 2011 at 15:23, fails to coincide with the dates and times of any of the other John Doe Defendants. Comp. Exhibit A. Thus, the logical conclusion is that the John Doe Defendants were part of multiple transactions, which is what the courts in Boy Racer and On the Cheap Order also concluded. The court in On the Cheap Order stated: “In Boy Racer, the Court was not persuaded by the copyright holder’s argument, which plaintiff sets forth here, that all of the defendants were involved in the same transaction because each one of them joined the same ‘swarm’ to download or distribute the copyrighted movie and were therefore acting in concert. Boy Racer found that the large gap of time – six weeks – between the alleged infringing act of the first Doe and the last Doe showed that the defendants may not have been cooperating with each other. The same is true for this case since Doe 1’s infringing act allegedly happened on June 19, 2010 while Doe 5011’s infringing act took place almost seven weeks later on August 6.” On the Cheap, Case No. 3:10-cv-04472 at FN4 (internal citations omitted).

If the Court were to accept Plaintiff's rationale, then from the instant that a BitTorrent seed begins sharing a file with another peer, a single “swarm” would be created and would exist until the very last instant when a peer was sharing a file with another peer. Thus, a single swarm could conceivably last until perpetuity – or, more realistically, weeks, months, or even years. Someone who started a download six months after a BitTorrent torrent descriptor file was initially made available would thus, per Plaintiff's characterization, be considered a participant in the same swarm as someone who had already completed the download, and was perhaps no longer even sharing the file, five months and twenty-nine days earlier. Under Plaintiff's theory, the two individuals – whose computers may never have even communicated with each other – could be joined together as co-defendants in a single lawsuit, as a plaintiff could argue that they were both part of a single swarm and thus were both a part of the same transaction or series of transactions. Such a scenario is obviously overly broad in terms of joinder and was therefore rightfully rejected by other courts. Rejecting this scenario is further bolstered by other facts. For example, as many Americans presently have access to high-speed Internet and even multi- gigabyte files can be downloaded within a matter of hours, since Plaintiff's alleged logs span two months, it is not clear how Plaintiff can seriously claim that each and every John Doe Defendant participated in the same transaction or same series of transactions. In order to transfer a file, the BitTorrent client must be open and the BitTorrent torrent descriptor file must be loaded into the client. Once a download is complete, an individual may exit out of the BitTorrent client, delete the BitTorrent torrent descriptor file, and/or eventually delete the downloaded file; in any of those situations, the file that was downloaded would no longer be shared with other peers. Additionally, to track the IP addresses used to download the pornographic video, IPP, Limited initiated a download of the film using a BitTorrent client. Comp. ¶ 40. Its own download of the adult video would hardly have taken two months to complete, and thus it would have had to initiate a new download each time the previous download completed. This is presumably what happened based upon Plaintiff's allegation that “each of the Defendant's computers used their identified IP addresses to connect to the investigative server from a computer ... in order to transmit a full copy, or a portion thereof, of a digital media file.” Comp. ¶ 40 (emphasis added). Therefore, by Plaintiff’s own admission, IPP, Limited was involved in multiple file transfers, i.e., multiple transactions. Doe Defendant also notes that the “hash number” that Plaintiff mentions in its Complaint does not identify a particular transaction or occurrence, but rather, it is used to identify the particular file that is being transmitted. All individuals who downloaded the file via BitTorrent would – or should – have the same hash number for the file, regardless of when they downloaded it or from which computers they received pieces of the file. Therefore, Plaintiff’s contention that the John Doe Defendants were all part of the same transaction, occurrence, or series of transactions or occurrences is without merit. The Complaint does not otherwise allege that John Doe Defendants were related in any way; the Complaint also does not allege any facts to support the conclusory claim that John Doe Defendants knew about each other. Thus, it is clear that Plaintiff's Complaint is no different from other peer-to-peer complaints made and rejected by courts across the country. As the Northern District of California stated: “The nature of the BitTorrent protocol does not justify joinder of these otherwise unrelated Doe defendants. The BitTorrent protocol is of the same peer-to-peer architecture of other peer-to-peer protocols where this Court and other courts have found joinder improper. Allegations that defendants used a single peer-to-peer network to download plaintiff’s works – on different days, at different times, and through different ISPs – is insufficient to allow plaintiff to litigate against sixty different defendants in one action.” Boy Racer, Case No. 3:11- cv-01738 at *6.
Furthermore, courts have found improper joinder in multiple-defendant copyright cases because each defendant is likely to have a different defense:
Comcast subscriber John Doe 1 could be an innocent parent whose internet access was abused by her minor child, while John Doe 2 might share a computer with a roommate who infringed Plaintiffs’ works. John Does 3 through 203 could be thieves, just as Plaintiffs believe, inexcusably pilfering Plaintiffs’ property and depriving them, and their artists, of the royalties they are rightly owed. . . . Wholesale litigation of these claims is inappropriate, at least with respect to a vast majority (if not all) of Defendants.

BMG Music v. Does 1-203, Case No. 04-650, 2004 WL 953888, *1 (E.D. Pa. Apr. 2,

2004); see also Third World Media, Case No. 3:10-CV-90 at *3 and On the Cheap, Case No. 3:10-cv-04472 at *6 (“one factor weighing in favor of severance is that since the claims against the different Defendants most likely will involve separate issues of fact and separate witnesses, different evidence, and different legal theories and defenses, which could lead to jury confusion, separate trials will be required for each Defendant” (internal citations and quotation marks omitted)).

You may find our memorandum in support of the Motion to Quash here. After we filed the Motion, the Plaintiff filed a notice of voluntary dismissal, which is permitted under the Federal Rules of Civil Procedure. Although we are glad that our client was dismissed from the litigation, the entire scenario surrounding this litigation and the ensuing shakedown of the individuals identified (RIAA style), is still troublesome.

Unfortunately for the Plaintiff, this questionable litigation strategy did not escape the Court's attention. The Court entered an Order severing all but one of the defendants from the litigation, quashed all the subpoenas, and may impose sanctions against Plaintiff and against Plaintiff's attorney.

Some interesting portions of the Court's Order follow:

In short, the plaintiff has failed to demonstrate any right to relief against the defendants arising out of the same transaction,occurrence,or series of transactions or occurrences. "Merely committing the same type of violation in the same way does not link defendants together for purposes of joinder." Laface Records, LLC v. Does 1-38, No. 5:07-CV-298, 2008 U.S. Dist. LEXIS 14544, at *7 (E.D.N.C. Feb. 27, 2008). The Court agrees with Judge Spero's analysis in a recent decision from the United States District Court for the Northern District of California
.
.
.
The mere allegation that the defendants have used the same peer-to-peer network to copy and reproduce the Work—which occurred on different days and times over a span of two months—is insufficient to meet the standards o f joinder set forth in Rule 20. See Diabolic Video Productions, Inc. v. Does 1-2099, No. 10-CV-5865, 2011 U.S. Dist. LEXIS 58351, at *10-11 (N.D. Cal. May 31,2011); see also Millennium TGA, Inc. v. Does 1-21, No. 11-2258,2011 U.S. Dist. LEXIS 53465, at *6-7 (N.D. Cal. May 12, 2011). Accordingly, the Court concludes that joinder of the Doe defendants in this action does not satisfy Rule 20(a). In the interest of fairness, the Court finds it appropriate to exercise its discretion under Rule 21 to sever all o f the defendants but one.

The Court also finds that the plaintiff should be required to show cause why certain conduct does not violate Rule 11 of the Federal Rules of Civil Procedure. The Court currently has three similar cases before it, all brought by the same attorney.2 The suits are virtually identical in their terms, but filed on behalf of different film production companies. In all three, the plaintiffs sought, and the Court granted, expedited discovery allowing the plaintiffs to subpoena information from ISPs to identify the Doe defendants. According to some of the defendants, the plaintiffs then contacted the John Does, alerting them to this lawsuit and their potential liability. Some defendants have indicated that the plaintiff has contacted them directly with harassing telephone calls, demanding $2,900 in compensation to end the litigation. When any of the defendants have filed a motion to dismiss or sever themselves from the litigation, however, the plaintiffs have immediately voluntarily dismissed them as parties to prevent the defendants from bringing their motions before the Court for resolution.

This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants' personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does. Whenever the suggestion of a ruling on the merits of the claims appears on the horizon, the plaintiffs drop the John Doe threatening to litigate the matter in order to avoid the actual cost of litigation and an actual decision on the merits.

The plaintiffs' conduct in these cases indicates an improper purpose for the suits. In addition, the joinder of unrelated defendants does not seem to be warranted by existing law or a non-frivolous extension of existing law.

A complete copy of the Court's Order can be read here. It will be interesting to see where this litigation goes next.

Attorney Domingo J. Rivera wins Summary Judgment in Computer Trespass Case

djr@icyberlaw.com (Cyber Lawyer) — Mon, 28 Mar 2011 19:46:00 GMT

In another pioneer decision, attorney Domingo J. Rivera obtained summary judgment in a case involving an ex-husband accessing his wife's email and social network accounts without authorization.

There has been some discussion in the news about a Michigan man that criminally charged with with accessing his wife's computer accounts.   Some commentators have argued that utilizing the computer hacking statutes to prosecute these acts is overreaching, but so far, the courts have provided little guidance on this issue.

Many Federal and State computer crime statutes provide not only criminal, but also civil remedies for the victims. Recently, attorney Domingo Rivera handled one of these civil cases.   As is the case for many pioneering cases handled by attorney Domingo Rivera, this was a case that other attorneys expressed doubt about and that opposing counsel openly minimized.

In this case, the opposing party claimed that the divorce property settlement agreement barred our client's claims and filed a counterclaim against our client for breach of the agreement. We also obtained summary judgment dismissing this claim against our client.

The Court not only agreed with the legal argument advance by attorney Domingo Rivera, but also granted summary judgment.   Obtaining summary judgment means that we prevailed as a matter of law and that a trial to establish liability was not necessary. The Court expertly discussed the standard for summary judgment:

In determining whether summary judgment is appropriate, the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat’l. Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). The Court must review the facts in a light most favorable to the party opposing a motion for summary judgment and give that party the benefit of any inferences that logically can be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998) (citing Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983)).
Once the moving party demonstrates that the record does not disclose a genuine dispute on a material fact, the non-moving party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial. Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998)(citing Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir. 1981)). In order for there to be a genuine issue of material fact, the non-moving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Furthermore, “[w]here the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th Cir. 1996)(quoting Crain v. Bd. of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir. 1990)).

The Court then moved on to the respective arguments of the parties, attorney Domingo Rivera represented the Plaintiff. The Court explained:

III. Plaintiff’s Claims

As a threshold matter, Defendant claims that Plaintiff is barred from bringing her claims by the terms of the Property Settlement Agreement (the “Agreement”) signed by both parties as a part of the parties’ divorce proceeding. Defendant’s counterclaim alleges that Plaintiff is in breach of contract for bringing the present claims. In signing the Agreement, both parties acknowledged that they had been represented by counsel prior to executing the Agreement. “Settlement agreements are contracts subject to the general rules of contract construction.” Hill v. Southside Public Schools, 688 F.Supp. 493, 497 (E.D. Ark. 1988) (quoting N.L.R.B. v. Superior Forwarding, Inc., 762 F.2d 695, 697 (8th Cir. 1985)). The Court is to construe any agreement to give effect to the intent of the parties. Id. The intent of the parties is determined by reviewing the language of the contract itself, as well as by considering “the circumstances surrounding the making of the contract, its subject, and the situation and relation of the parties at the time of its making.” Id. (quoting Louisiana-Nevada Transit Co. V. Woods, 393 F. Supp. 177, 184 (W.D. Ark. 1975)).

The Agreement was meant to settle any and all claims related to the divorce proceeding. It strains logic to infer that the parties’ intended to waive the ability to bring any and all claims, including federal claims that could not have been litigated in a state divorce proceeding, that could ever potentially arise between the parties. Taking into consideration the fact that the parties were forming and signing the agreement in the context of a divorce proceeding; the subject and purpose of the agreement was to settle issues “arising out of this [divorce] litigation”. (Doc. 8, p. 11, ex. A). The fact that the divorce proceeding took place in state court that would not have jurisdiction over many of the claims Plaintiff now raises, can only lead the Court to conclude that Plaintiff did not waive her ability to bring the instant claims. While the alleged conduct may have taken place prior to and during the pendency of the divorce proceedings, the Court does not find Plaintiff’s claims to be intertwined with the Agreement such that she would now be precluded from bringing her claims in federal court.

Defendant also argues that Plaintiff is precluded from bringing her claims because the court presiding over the custody proceeding admitted the materials that he accessed into evidence. A court’s admission of materials into evidence is not relevant to the issues currently before the court. The judge in that proceeding made no determination as to the merits of the present claims. As Defendant points out, Plaintiff may have been able to appeal the decision to admit the evidence, but she also has the independent ability to pursue separate claims in this Court. For these reasons, the Court finds that Plaintiff is entitled to Summary Judgment on Defendant’s Counterclaim, and her motion as to the counterclaim (doc. 22) is GRANTED.

Finally, the Court explored the applicability of the Stored Communications Act and the State Computer Trespass statutes:

ii. Federal Stored Communications Act (SCA)
The relevant section of the SCA provides that whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility; and thereby obtains . . . access to a wire or electronic communication while it is in electronic storage in such system shall be punished . . .” 18 U.S.C. § 2701(a). The statute allows for private causes of action where “any person” injured by a violation of the SCA can show that the person violating the Act acted with a “knowing or intentional state of mind[.]” 18 U.S.C. § 2707(a). “[W]here the facts indisputably present a case of an individual logging onto another’s e-mail account without permission and reviewing the material therein, a summary judgment finding of an SCA violation is appropriate.” Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 976 (M.D. Tenn. 2008) (citing Wyatt Tech. Corp. v. Smithson, No. 05-1309, 2006 WL 5668246, **9-10 (C.D. Cal. 2006)). The Court finds no genuine issue of any material fact regarding Defendant’s unlawful access to Plaintiff’s stored communications. Defendant has admitted to using a keylogger program to obtain Plaintiff’s passwords. Defendant then used those passwords to access Plaintiff’s email account without authorization. Summary judgment for Plaintiff on this count as to liability is, therefore, appropriate. The amount of damages, if any, may be determined at trial.

iv. Statutory State Law Claims

Plaintiff contends that Defendant should be found liable for computer trespass under Ark. Code Ann. § 5-41-104. While there is little case law interpreting this particular statute, it is clear to the court that Defendant intentionally accessed the MySpace and Yahoo computer networks without authorization and should now be held liable for computer trespass. While the extent of Plaintiff’s actual injury, under this statute is not entirely clear, the Court finds that she has at least sustained some minor damages in changing her passwords and assessing the consequences of her husband’s snooping. See Cardinal Health 414, Inc. v. Adams, 582 Supp.2d 967, 982 (M.D. Tenn. 2008) (finding minor damages to a plaintiff under a similar state statute). The Court therefore finds that summary judgment should be granted in favor of Plaintiff on this count as to liability, and any damages may be determined at trial.

In this case, attorney Domingo J. Rivera obtained another pioneer decision. This follows up other cases, for instance, attorney Domingo J. Rivera was the first Internet Lawyer in the United States to win a complex jury trial involving Federal Copyright Infringement, music piracy criminal allegations. This was also the most important case of its type. Our client was alleged to be the leader of the most prolific music piracy group in the world. After five days of trial, the jury agreed with us and returned a Not Guilty verdict.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Are Website User Reviews Copyrightable?

djr@icyberlaw.com (Cyber Lawyer) — Wed, 29 Sep 2010 21:04:00 GMT

Are Website User Reviews Copyrightable? by Domingo J. Rivera , Esq.

Internet review sites continue to gain popularity. Users can find a website where they can review just about anything. From whether they like the breakfast bar at a particular hotel to their Toyota's breaking capabilities (or lack thereof), from whether their obstetrician is friendly enough to whether their plastic surgeon made their nose a bit too pointy. If an Internet user wants the world informed of his or her every interaction with the outside world, there is a platform out there to accommodate that.

The question is, are these reviews copyrightable material. If they are, the author grants a license to publish these materials to the website and can generally revoke this license. What happens if the original author demands removal of the review? Can the website refuse to do so without incurring potential liability for copyright infringement ? The answer depends on whether these reviews are copyrightable in the first place and involves an Internet law question. In my opinion, they are. You do not need to be John Grisham to copyright your writings.

According to the notes of committee on the Judiciary (1976) for 17 U.S.C. § 102, “[t]he phrase 'original works of authorship,' which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts under the present copyright statute. This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.” Additionally, regarding the nature of copyright, the notes further state that “[c]opyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary, musical, graphic, or artistic form in which the author expressed intellectual concepts” (emphasis added).

It is well-established that facts cannot be copyrighted. Rather, the United States Supreme Court has held that “[t]he copyright is limited to those aspects of the work—termed 'expression'—that display the stamp of the author's originality.” Harper Row, Publishers Inc v. Nation Enterprises, 471 U.S. 539, 547, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). However, “[c]reation of a nonfiction work, even a compilation of pure fact, entails originality.” Id.

The Supreme Court held:

To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Id., § 1.08. Originality does not signify novelty...

Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (emphasis added, internal citations omitted). “[O]riginality requires independent creation plus a modicum of creativity”, and “creativity” is “limited to 'original intellectual conceptions of the author.'” Id. at 346.

Even compilations of facts can be copyrighted, though the copyright is in the compilation itself and not the facts. As the Feist court explained:

Factual compilations... may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. Id. at 348. “[I]f the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression.”

The U.S. Court of Appeals for 4th Circuit noted that “... copyright does not secure an exclusive right to the use of facts, ideas, or other knowledge. Rather, a copyright gives an author exclusive rights only with respect to his manner of expression.” Bond v. Blum, 317 F.3d 385, 394 (4th Cir., 2003) (emphasis added). “The copyright is the author's right to prohibit the copying of the author's intellectual invention, i.e. the originality of an author's expression. Since individual expressions of ideas inevitably vary, the originality inherent in each author's expression is the essence of the proprietary interest protected.” Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., Inc., 74 F.3d 488, 492 (4th Cir., 1996). What is copyrightable is the author's original expression of the facts, not the facts themselves, and the Supreme Court has held that only a minimal amount of “creativity” is needed to be considered “original.”

The question of whether factual works are copyrightable thus focuses on the original contribution of the author – how the author presents the facts, how the author chooses, interprets, or analyzes those facts, the words and terms the author uses to couch those facts, etc. The Southern District of New York explained it as thus: “[copyright law] afford[s] protection only to the author's manner of expression, that is, the author's analysis or interpretation of events, the way he or she structures material and marshals facts, the author's choice of words, and the emphasis the author gives to particular developments.” Werlin v. Reader's Digest Ass'n, Inc., 528 F.Supp. 451, 461-462 (S.D.N.Y., 1981).Thus, this Court holds that the Review qualifies as a copyrightable work.

Therefore, a review is copyrightable as the author's independent creation and original expression of facts. The reviewer's choice of words, interpretation and analysis of the facts, structuring of the review, etc. satisfy the minimal creativity standard set by the Supreme Court to meet the “originality” requirements of the Copyright Act.

Therefore, by refusing to remove reviews at the request of the original author, the website owner is potentially exposed to a copyright infringement claim. The ISP immunities under Section 230 of the Communications Decency Act do not apply to copyright claims.

Internet Lawyer New Website

djr@icyberlaw.com (Cyber Lawyer) — Thu, 20 May 2010 02:58:00 GMT

We are in the process of updating the Internet Lawyer website. The website was a bit dated and in desperate need of a "facelift." We have updated the appearance and will be updating the contents to better reflect the current state of our practice. This has been a very successful year for our Internet Law practice, and hopefully the new website will better reflect our image. During that time, some of the urls in the Internet Lawyer website may still resolve to the old pages. I am aware that this has caused some confusion for some of our existing and potential clients, but it will be resolved soon. We are going through the same process with our Cyber Crime Defense website. This one is almost done, but some urls still need to be fixed.

We will continue updating the website in a manner that will hopefully reduce any confusion. This has been a great year for our Internet Law firm. We became the first law firm in the United States to win a jury trial in Federal Court involving accusations of criminal copyright infringement (music piracy). This was also the most important case of its type. Our client was alleged to be the leader of the most prolific music piracy group in the world. After five days of trial, the jury agreed with us and returned a Not Guilty verdict.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

U.S. v. Cassim: Domingo Rivera obtains first Federal "music piracy" jury trial defense victory

djr@icyberlaw.com (Cyber Lawyer) — Sat, 20 Mar 2010 05:16:00 GMT

Today, a federal jury acquitted Adil Cassim who was represented by Domingo J. Rivera. The United States Department of Justice had alleged that Adil Cassim was the leader of Rabid Neurosis ("RNS"). On the DOJ website, the press release alleged that "according to the indictment, the defendants, led by Cassim for a period of time, allegedly conspired to illegally upload to RNS thousands of copyright protected music files, which were often subsequently reproduced and distributed hundreds of thousands of times. According to the indictment, RNS was a "first-provider" or "release group" for pirated music and other content to the Internet. Once a group obtains and prepares infringing digital copies of copyrighted works, the copies can then be distributed in a matter of hours to secure computer servers throughout the world. According to the indictment, RNS members were granted access to massive libraries of pirated music, video games, software and movies by gaining a reputation for providing previously unavailable pirated materials. The indictment alleges that the supply of pre-release music was often provided by music industry insiders, such as employees of compact disc (CD) manufacturing plants, radio stations and retailers, who typically receive advance copies of music prior to its commercial release.Read the USDOJ press release here.

Various alleged members of RNS have been convicted. The jury's verdict was released a few hours ago, more details will be available soon.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

The CDA, cyber-racketeers, the DMCA, and changes to Section 230 by Domingo Rivera

djr@icyberlaw.com (Cyber Lawyer) — Wed, 26 Nov 2008 16:35:00 GMT

It has been quite a while since my previous post. I have been extremely busy assisting my clients with Internet legal matters. Internet defamation continues to affect the reputation of businesses and professionals as former customers, patients, and others who know that they do not have valid legal claims assert their false and frivolous complaints in blogs, forums and smear sites. Even competitors are now posing as unsatisfied consumers in order to post false and defamatory statements with hopes to gain an unwarranted economic advantage. Everyday we protect the reputation of businesses and professionals against these unlawful practices.

With the elections over, it is now time to get back to business as normal. Speaking of the elections and politicians, many do not know that they can thank Congress for the continued proliferation of Internet defamation. The name of the culprit law is Section 230 of the Communications Decency Act. The purpose of this law was to allow Internet service providers to be able to alter or remove objectionable content without assuming the liability associated with a traditional publisher of content. Congress sought to allow providers of interactive computer services to perform some editing on user-generated content without becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete. In other words, Congress sought to immunize the removal of user generated content, not the creation of content.

Sections 230(c)(1) and 230(e)(3) provide that "no 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," 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." Noble intentions behind this Congressional law, but not-so good intention behind "Internet street law" which could be read as saying "service provider, you can stand by while your services are used to ruin the reputation of good businesses and people, don't worry, we will not hold you liable."

This has given rise to many consumer complaints websites. While some of these are well-intentioned and responsible, the majority are not. The lawlessness has now sparked many websites charging fees for "investigating" consumer complaints. Some of these websites have their employees call their targets and offer to help with the defamatory postings... for a membership fee, of course. Some of these websites have been known to have their employees actually create the postings in an "anonymous" manner.

There are certain of these websites who charge a sliding scale fee for these memberships. Therefore, if you are a successful business and you wish to have the false postings edited or removed, it may cost tens of thousands of dollars. But the administrators of this scheme apparently have a kind and gentle heart. Therefore, if you believe that their fee is not financially feasible to you, they offer you the opportunity to prove it to them and request a lower fee. But you must provide them your private financial information first. Are these practices any different from the mafia employee going to a store and demanding the boss' "share" of the business earnings. Well, the threat of physical violence is now absent, but the demand is essentially the same "give us our share of your income or we will put you out of business." The name for this practice is racketeering.

Now, if Domingo Rivera was a politician, which by the way is a very far-fetch thought, what would he do? Well, Congress could look close to home for a smart, practical way to amend the CDA. There is no reason for not adopting the takedown procedures mandated under the Digital Millennium Copyright Act (DMCA).

Under the DMCA, if a copyright owner discovers that contents are posted online in violation of the copyright owner’s rights, the copyright owner has the opportunity to have the allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled. To accomplish this, the copyright owner must provide notice to the service provider. Once proper notice is given, the service provider is required to expeditiously remove, or disable access to the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.

Upon receiving notice that the allegedly infringing material has been removed, the person responsible for posting the contents has an opportunity to send a counter-notice to the service provider stating that the material has been wrongly removed. If a subscriber provides a proper counter-notice, the service provider must then promptly notify the copyright owner. If, after receiving the counter-notice, the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is required to restore the material. Additionally, under the DMCA, if it is determined that the copyright owner misrepresented the claim, the copyright holder then becomes liable to the individual who posted the contents for any damages that resulted from the improper removal of the material.

A similar approach can be utilized for defamation claims. Under this approach, a person discovering defamatory contents would be able to send a sworn notification to the service provider. Upon receipt, the service provider would remove the contents or disable access to the contents. At that time, the person posting the contents may serve a counter-notice. If after a period of time, the defamation victim has not filed a lawsuit, then the contents could be restored. This approach would allow for free truthful expression on the Internet while at the same time fairly providing a method that allows those defamed to protect their reputation online.

Do I see this happening anytime soon? Probably not (and Domingo Rivera has no plans of running for office). In the meantime, we will continue to devise novel strategies and techniques for protecting the reputation of Internet businesses against the cyber racketeers.

If you enjoyed this post, you may also like:

Cease and Desist Letters: Balancing the Punishment for Bad Faith Against the Punishment for Bad Letters

djr@icyberlaw.com (Cyber Lawyer) — Sat, 14 Jun 2008 04:34:00 GMT

There is no doubt that cease and desist letters serve a very important purpose in the litigation process, particularly in legal matters related to the Internet. Many causes of action have bad faith as either an essential element or a factor that increases damages. A party’s refusal to correct its acts after receiving a legitimate cease and desist notice can be interpreted as a sign of bad faith. Although a recipient of a cease and desist notice has every right to decline pre-litigation requests without adverse consequences, he must do so in good faith. Good faith means a reasonable belief of having the right to engage in the challenged behavior. However, this “good faith belief” will not be interpreted broadly. See, for example, Northern Light Tech., Inc. v. Northern Lights Club, 236 F.3d 57, 65 (1st Cir.2001) (approving district court's use of defendant's disregard of legitimate cease and desist letters as evidence of bad faith).

The question then becomes whether the recipient of the cease and desist letter willfully refused to comply with the law. The answer involves an inquiry into the recipient’s state of mind. In many cases there is no direct evidence of bad faith, however, the court may infer bad faith from the surrounding circumstances. Therefore, if you receive a legitimate cease and desist letter from an attorney you should either cease the challenged behavior, or seek the immediate help of a competent attorney for candid advice as to whether your behavior violates the law. You should select an attorney who is familiar with the area of law that is at issue.

If you receive a cease and desist letter from us, you can be sure that we will advice our client to seek additional remedies if the matter cannot be adequately resolved. The letter may concern copyright infringement, trademark infringement, defamation, or other Internet legal matters. Ignoring the letter is usually a bad bet, as the court may see it as a sign of bad faith. The defense side of a courtroom is not a pleasant place to be.

However, we understand that some attorneys venture into sending letters that make no legal sense. I have previously commented about cease and desist letters and how ineffective they can sometimes be. Some of these letters are so far-fetched, unrealistic, and unprofessional that many do not take them seriously. Hence, the Third Circuit Court’s decision on Green v. Fornario, 486 F.3d 100 (3rd Cir. 2007).

In Fornario, the plaintiff sent a cease and desist letter that included a threat from the attorney to refer the “conduct to the appropriate criminal authorities." The small problem: this was a trademark dispute and the Lanham Act is a purely civil statute. The big problem: lawyers should take threatening criminal prosecution very seriously. In many States, a lawyer cannot threaten criminal prosecution for the purpose of gaining an advantage in a civil case.

The Fornario court refused to find that the defendant’s refusal to cease the allegedly infringing behavior was in bad faith. Whether the court would have reached a different decision if the cease desist letter from the attorney been of better quality and without idle threats of criminal prosecution is anybody’s guess. In Northern Light Tech. the court viewed the defendant's disregard of legitimate cease and desist letters as evidence of bad faith. To reconcile the decisions probably requires an understanding of the difference between bad faith and bad cease and desist letters.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Internet Bloggers Beware: Ohio Court Lands Another Blow Against Those Engaging in Internet Defamation

djr@icyberlaw.com (Cyber Lawyer) — Thu, 01 May 2008 07:06:00 GMT

I recently commented on the impact of the U.S. Court of Appeals for the Ninth Circuit Court of Appeals’ decision limiting the protections afforded to service providers under the Communications Decency Act. In that case, the court refused to provide immunity to website owners who encourage unlawful or defamatory statements. Less than a month later, the Ohio Court of Appeals also refused to protect the “interests” of bloggers and others who engage in online defamatory statements. The Ninth Circuit’s message was that if you encourage unlawful conduct, the CDA will not provide you with unwarranted solace. The Ohio Court of Appeals message is that if you post defamatory statements online, you may be sued in a State where the other party’s reputation is damaged.

In Kauffman Racing Equipment v. Roberts, a Virginia resident, Mr. Roberts, purchased an engine block on the Internet. Mr. Roberts was dissatisfied with his purchase and decided to express his dissatisfaction by posting a number of statements on various Internet websites. Kauffman Racing, a company with its main place of business in Ohio, filed a lawsuit in Ohio. Mr. Roberts moved to dismiss alleging that Ohio did not have personal jurisdiction over him. The Ohio Court of Appeals disagreed.

In applying Ohio’s long-arm statute as well as Constitutional principles, the Court held that Ohio’s long arm statute applied and that, as a result of the postings, exercising jurisdiction over Roberts established the necessary “minimum contacts” under the jurisdiction. The implications of this ruling are far reaching.

Let’s say, for example, that a blogger posts defamatory comments about an individual. An implication that the individual has engaged in misconduct, such as perjury (even if the statement is qualified by the word “allegedly”) would qualify. Let’s further assume that the defamed individual is applying for a position with a college in Virginia. Under the Kauffman Court’s reasoning, the defamed individual may sue the blogger in Virginia. This applies even if the blogger lives in the West Coast and has no intentions of ever visiting Virginia. The blogger is now exposed to liability in the Federal District Court for the Eastern District of Virginia, aka the “rocket docket,” where litigation is intense, bloggers are not particularly appreciated, and jury awards can be devastating. So go ahead, blog and defame others… at your own risk.

Internet Defamation Law - Website owners and bloggers beware - The latest interpretation of Section 230 of the Communications Decency Act

djr@icyberlaw.com (Cyber Lawyer) — Sat, 05 Apr 2008 02:28:00 GMT

As a general rule, we encourage many of our clients who own or operate websites or blogs and who want to be somewhat protected from Internet defamation claims to not encourage others to post comments. We also explain to our clients the impact of Section 230 of the Communications Decency Act. The U.S. Court of Appeals for the Ninth Circuit has validated our general recommendation for a cautious approach ...

Website operators and web log (blog) owners beware - If you encourage illegal content or design your website to require users to input illegal content, you may not be afforded immunity under Section 230 of the Communications Decency Act.

On April 3, 2008, the decision of the U.S. Court of Appeals for the Ninth Circuit came down (the full text of the opinion is posted here) ... and inevitably shook the confidence of website operators and bloggers who encourage others to post comments (usually defamatory), on their website or blog.

The opinion is quite lengthy and I am still analyzing the full extent of its impact, but here are some highlights:

The court clarified a misconception that many have of the interpretation of Section 230 of the CDA:

In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete. In other words, Congress sought to immunize the removal of user generated content, not the creation of content: “[S]ection [230] provides ‘Good Samaritan’ protections from civil liability for providers . . . of an interactive computer service for actions to restrict . . . access to objectionable online material.

The Court continued:

We believe that both the immunity for passive conduits and the exception for co-developers must be given their proper scope and, to that end, we interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.

The message is clear, if you incite or "implore" others to participate in unlawful conduct, usually defamatory, the CDA will not be your savior.

Perhaps, one of the most important sections of the opinion is the following passage which creates a clear ambiguity. On one hand, plaintiffs are warned against overly litigious stances. On the other hand, the Court makes clear that if the provider becomes a participant, legal liability may result. The Court stated:

Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality
of third parties. Where it is very clear that the website directly participates in developing the alleged illegality—as it is clear here with respect to Roommate’s questions, answers and the resulting profile pages—immunity will be lost. But in cases of enhancement by implication or development by inference—such as with respect to the “Additional Comments” here—section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.

As this decision shows, the development of Internet defamation and CDA jurisprudence remain fluid. We will continue to keep you posted on the progress and the development of this as well as other Internet Law matters.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Internet Copyright Infringement - Courts Weigh-In

djr@icyberlaw.com (Cyber Lawyer) — Mon, 10 Mar 2008 19:57:00 GMT

We frequently handle Internet copyright infringement issues. These issues present themselves in many forms. Some examples include: Internet copyright infringement resulting from copied website contents, Internet copyright infringement claims against ISP resulting from copied website photographs, Internet copyright infringement claims against Internet search engine from displaying copyright images as thumbnails with the indexed results, and Internet copyright infringement claim against search engine and online retailer resulting from the use of copyrighted images as thumbnails.

Internet copyright infringement decisions are far from uniform. Quite to the contrary, Internet law is one of the least predictable areas of law. However, the decisions of some courts follow:

Internet copyright infringement from copied Internet website contents

The owner of a website that sold goods and services over the Internet discovered that a competitor had copied the contents of its website and had created a rival Internet site that was a virtual mirror image if its website. The website was copied by posting identical source code at other Internet websites. The replication of the site diverted traffic and sales from the original website.

A New York federal court held that the Internet copyright infringement resulting from the copying of the website was willful and awarded statutory damages for Internet copyright infringement as well as costs and attorneys’ fees.

The Court found that the infringement was willful and awarded statutory damages with the objectives of compensating copyright owners for past infringement and deterring future infringement. The Factors considered relevant to determining an appropriate statutory damages award include the “expenses saved and profits reaped by the infringers,” the revenues lost by the plaintiff, the infringers' state of mind (wilful, knowing or merely innocent), the value of the copyright and the deterrent effect on both the defendant and others. The court also awarded attorney's fees and costs

Internet copyright infringement claims against ISP resulting from copied website photographs

The owner of an Internet website containing commercial real estate information sues an ISP for Internet copyright infringement, contributory copyright infringement, vicarious Internet copyright infringement, and challenging the applicability of the DMCA safe harbor provision to the ISP.

A Virginia federal court dismissed the claims of Internet copyright infringement, contributory copyright infringement, and vicarious copyright infringement. The DMCA safe harbor provision protected the ISP.

A provider of commercial real estate information on the Internet collected a comprehensive a comprehensive database of information on commercial real estate markets and commercial properties in the United States and the United Kingdom. The database, including photographs was available to customers through the Internet.

An Internet service provider’s (“ISP”) website allowed subscribers, generally real estate brokers, to post listings of commercial real estate on the Internet. The ISPs terms of service included a promise not to post copies of photographs without authorization. When informed of the violations, the ISP removed the photographs.

The commercial real estate provider commenced action against the ISP for copyright infringement, violation of the Lanham Act, and several state-law causes of action. A federal court in Maryland held that the ISP had not engaged in direct infringement under the Copyright Act. It left open, however, CoStar's claims that LoopNet might have contributorily infringed CoStar's copyrights and that LoopNet was not entitled to the “safe harbor” immunity provided by the Digital Millennium Copyright Act, 17 U.S.C. § 512.

The U.S. Court of Appeals held that an Internet service provider (ISP) could not be held liable as a direct copyright infringer when its facility was used by subscriber to violate copyright without intervening conduct of ISP; ISP, which provided system that automatically received subscriber's infringing material and transmitted it to Internet at instigation of subscriber, had not itself fixed copy in its system of more than transitory duration.

Internet service providers (ISPs), when passively storing material at direction of users in order to make that material available to other users upon their request, do not “copy” material in direct violation of Copyright Act. 17 U.S.C.A. § 106.

Automatic copying, storage, and transmission of copyrighted materials, when instigated by others, does not render Internet service provider (ISP) directly liable for copyright infringement; ISP can become liable indirectly upon showing of additional involvement sufficient to establish contributory or vicarious infringement, but even then may still look to Digital Millennium Copyright Act (DMCA) for safe harbor if it fulfilled conditions therein. 17 U.S.C.A. §§ 106, 501, 512.

Internet copyright infringement claim against Internet search engine from displaying copyright images as thumbnails with the indexed results

A professional photographer and owner of copyrighted images displayed on his Internet web site sued a leading Internet search engine, which displayed search results as “thumbnail” pictures, for copyright infringement.

A California federal court dismissed the claim of Internet copyright infringement. The use of copyrighted images that were displayed on Internet web sites by the search engine, which displayed search results as “thumbnail” pictures, was “fair use” of copyrighted images.

The plaintiff was a professional photographer who has copyrighted many of his images. Some of these images are located on plaintiff’s web site or other web sites with which plaintiff had a license agreement. The defendant operated an internet search engine that displayed its results in the form of small pictures rather than the more usual form of text. The defendant obtained its database of pictures by copying images from other web sites. By clicking on one of these small pictures, called “thumbnails,” the user can then view a large version of that same picture within the context of the web page.

When plaintiff discovered that his photographs were part of defendant’s search engine database, he brought a claim against defendant for copyright infringement. The court found that plaintiff had established a prima facie case of copyright infringement based on defendant’s unauthorized reproduction and display of plaintiff’s works, but that this reproduction and display constituted a non-infringing “fair use” under Section 107 of the Copyright Act.

The use of copyrighted images that were displayed on Internet web sites by operator of visual search engine, which displayed search results as “thumbnail” pictures, was “fair use” of copyrighted images; although creative nature of the copyrighted works weighed in favor of image owner, purpose and character of operator's use of works and effect of that use on potential market for or value of works weighed in favor of search engine operator. 17 U.S.C.A. § 107.

Internet copyright infringement claim against search engine and online retailer resulting from the use of copyrighted images as thumbnails

A copyright owner brought legal action major Internet search engine and Internet retailer for Internet copyright infringement resulting from the copying of copyrighted images. The copyright owner sought a preliminary injunction based on its claim of Internet copyright infringement to prevent the retailer and the search engine from copying, reproducing, distributing, displaying, or otherwise infringing, or contributing to the Internet copyright infringement of its photographs.

A California court dismissed the claim of Internet copyright infringement, held that the Internet search engine operator's display of thumbnail images of copyright owner's photographs, in response to user searches, was fair use of copyrighted photographs; operator put images to a use fundamentally different than use intended by owner, thereby providing significant benefit to the public.

A copyright owner brought legal action major Internet search engine and Internet retailer for Internet copyright infringement resulting from the copying of copyrighted images. The copyright owner sought a preliminary injunction based on its claim of Internet copyright infringement to prevent the retailer and the search engine from copying, reproducing, distributing, displaying, or otherwise infringing, or contributing to the Internet copyright infringement of its photographs.

Internet search engine operator's display of thumbnail images of copyright owner's photographs, in response to user searches, was fair use of copyrighted photographs; operator put images to a use fundamentally different than use intended by owner, thereby providing significant benefit to the public. 17 U.S.C.A. § 107.

Even if search engine users who linked to websites showing owner's copyrighted photographs automatically made “cache” copies of full size images of the works, and such action amounted to direct infringement of owner's right of reproduction, such automatic copying was fair use of copyrighted images; such copying was a transformative use, the cache copied no more than was necessary to assist the user in Internet use, and the copying had no more than a minimal effect on owner's rights, while having a considerable public benefit. 17 U.S.C.A. § 107.

Owner of copyrighted photographs was not likely to succeed on its claim of vicarious copyright infringement by Internet search engine operator that provided, to its users, links to third-party websites that reproduced, displayed, and distributed unauthorized copies of owner's images, as required for preliminary injunction prohibiting such linking; owner did not demonstrate likelihood of showing that operator had legal right to stop or limit direct infringement of third-party websites, notwithstanding agreements, through an advertising program, permitting it to terminate an entity's participation in that program, operator could not terminate third-party websites or block their ability to host and serve infringing full-size images on the Internet, and operator lacked practical ability to police the infringing activities of third-party websites.

Contact us for a professional consultation if you wish to discuss Internet copyright infringement issues or other Internet legal issues with an Internet trial attorney.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Our Interview With the BBC

djr@icyberlaw.com (Cyber Lawyer) — Tue, 04 Mar 2008 04:19:00 GMT

Last Friday, I had the pleasure of being invited for an interview with reporter Alex Ritson from the BBC. I appeared on his satellite radio broadcast where we discussed issues related to Internet Defamation, the Communications Decency Act immunity, the differences between a service provider and a content provider, the Wikileaks case, and related Internet Law matters.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Peer to Peer (P2P) software is great!... until the SWAT team arrives

djr@icyberlaw.com (Cyber Lawyer) — Fri, 25 Jan 2008 16:59:00 GMT

Many people install file sharing, peer-to-peer (P2P) software in their computers. The concept sounds promising, having open collaboration and open sharing of files and information between Internet users throughout the world. Unfortunately, that is not the way it usually ends.

P2P software frequently becomes a tool for copyright infringement, computer hacking, child pornography, and similar actionable conduct. Often, this conduct results in civil and/or criminal prosecution. Now, we are not discussing whether P2P software is itself a problem. There is plenty of case law discussing whether the software can be used for non-infringing uses and whether infringement is the primary purpose of the software. In fact, these points have been discussed ad nauseam by the courts and commentators. The intention here is to present a practical perspective of the issue, so that those thinking of installing and using P2P software may make a more informed decision.

Many people, perhaps out of curiosity, or maybe knowing full well what they are getting themselves into, install P2P software in their computers. Next thing, they search for songs by their favorite artists or for their favorite movies. Double click and the file is transfered to computer. The trip to Target to buy the CD or DVD is hereby canceled. This becomes an addiction for some, getting song after song, movie after movie, and in turn sharing them with other P2P users. However, people who think that their P2P acts will go unnoticed are wrong. The owner of the copyrighted works will use the same P2P software to track down and catch the infringer. The result is single mothers having to pay enormous amounts of money in damages, college students seeing their future career possibilities hampered, and some being prosecuted criminally. Not to mention that the downloaded version of your "favorite song" may contain a computer virus that may destroy your hard drive or facilitate the theft of your personal identification data and files. This addiction to P2P becomes more and more expensive.

Speaking of addictive, many use P2P software to download pornographic material. As an Internet crime defense attorney, I have spoken to people who use P2P software to download hundreds of pornographic files every day. Some download the files just to download them and never even view a large number of the downloaded files. Downloading adult pornography is not usually prosecuted, but those who download child pornography are.

These people who download a large number of files from P2P may not realize that embedded between their files are depictions of child pornography. These files are sometimes put in the "shared" folder of the P2P software for others to download.... sounds like distribution to me. The P2P user may not realize that these acts will almost certainly subject them to prosecution for receipt, possession, and distribution of child pornography. States aggressively prosecute these crimes and the federal system is merciless. We frequently defend people charged with these crimes and have the required legal and technical expertise to do so in an expert manner, but make no mistake, you can pick up serious felony charges from the comfort of your own home. By the time you hear the agents knocking on your door, your life has already changed. Is it worth it to install and use P2P software?... You decide.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Misquoted!

djr@icyberlaw.com (Cyber Lawyer) — Sat, 19 Jan 2008 03:07:00 GMT

In connection with a federal court trial, we were interviewed by a reporter from a major newspaper in the Washington D.C. area. The surprise came the following day when I read an article containing the famous "one of his attorneys . . . said" line. What followed was an inaccurate post (no pun intended). I have contacted the reporter and have requested a correction. As Internet lawyers handling cases of high importance, we frequently interact with the professional press. We understand that errors could be made even by consummate professionals.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Hidden System Files May Support Criminal Prosecution

djr@icyberlaw.com (Cyber Lawyer) — Sat, 29 Dec 2007 07:20:00 GMT

We recently completed an Internet crime trial. The large majority of the prosecution's evidence was found in hidden system files of a computer running Windows XP. These files could not be retrieved without the use of software not standard in Windows and which is not available to unsophisticated computer users.

It took dedication and patience to explain to the court the inner workings of hidden files such as thumbs.db. Without the ability to effectively describe the operation of the Windows XP Operating System it would have been impossible to obtain a favorable outcome for our client. Without this specialized technical competence, taking this case to trial, as opposed to pleading to whatever could be gotten from the prosecutor, would have been insane. Without expertise about computer operating systems and the Internet, it is very difficult for an attorney to be effective when trying a computer or cyber crime case.

As far as I know, we are the only Internet Law Firm that has an attorney who is also a Computer Engineer with in depth technology experience, including critical projects with the Department of Defense. We can apply our unique computer and Internet knowledge to any cyber crime matter.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Computer Hacking and Unauthorized Access to Computer Networks: Curiosity Can Kill the Cat

djr@icyberlaw.com (Cyber Lawyer) — Sat, 22 Dec 2007 05:42:00 GMT

Recently, we have encountered many instances of the following scenario... Often out of curiosity, an Internet website visitor may exceed his authorized access under his access login or under the website's terms of use. Website access scripts are easily available online. Their use, however, may generate serious accusations of computer crime, specifically hacking and unauthorized access. Under cybercrime and computer laws, a conviction for computer hacking can carry 20 years to life in prison.

If you are accused of computer hacking or unauthorized access to a computer network, our computer hacking defense attorneys understand the technical aspects of the Internet and can provide you with a top tier computer hacking defense.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

The importance of having a computer expert as your Internet cyber trial attorney

djr@icyberlaw.com (Cyber Lawyer) — Sun, 16 Dec 2007 19:02:00 GMT

During a cyber trial, a computer crime, or a trial involving issues of Internet law, I can’t overstress the importance of having an attorney who is not only a legal subject matter expert, but also an expert in computer technology and the technical concepts related to the Internet.

Case in point, we recently completed a long and complex cyber crime trial. We were fully equipped to expertly handle the criminal defense aspects of the case, we knew the law, how to cross-examine witnesses, and how to establish reasonable doubt. However, during the trial, it was our technical expertise what allowed us to provide a unique perspective to the evidence presented.

For example, the alleged criminal activity was traced to our client’s IP address and MAC addresses. However, the documentation used by the government contained errors that only an attorney with expert Internet technology knowledge would have caught. Error number one was that one of the MAC addresses utilized by the government to justify the search warrant had one character too many, i.e., it was not valid. The other MAC address pointed to a laptop computer, but the government identified it as a router. These critical defects would have probably gone unnoticed to the eyes of the typical lawyer. Does the average attorney even know how many characters there are in a valid MAC address? I can guarantee you that the answer is no.

Another issue that came up was that the government’s evidence was mostly obtained through forensic analysis of hidden system files, such as the thumbs.db file and others. If it takes forensic analysis to even retrieve evidence that a client who is not technically sophisticated and who does not have the necessary computer forensic tools is accused of “intentionally” possessing, how can the government show intent? It took a lot of finesse, patience, and art to explain to the court how the evidence presented could have been retrieved in the first place. The typical non-technical attorney would have had a hard time understanding these concepts and attacking this evidence. I have seen cases forced to a settlement or plea that is not warranted under the circumstances simply because, although the attorney can competently argue the law, he/she can’t competently argue the technology. Our expertise includes technical degrees in Computer Engineering and years of Internet technology experience.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Microsoft Corporation Sues a Dentist for Trademark Infringement and Cybersquatting

djr@icyberlaw.com (Cyber Lawyer) — Tue, 04 Dec 2007 05:51:00 GMT

The Anti-cybersquatting Consumer Protection Act (ACPA) makes those who register infringing domain names in bad faith liable to civil suits from a trademark owner.

Microsoft has filed a trademark infringement suit against a California dentist, Dr. Saed Said, who has registered more than 40 Internet domains with names similar to Microsoft’s products or brands, including: aMicrosoftShop.com, aMicrosoftStore.com, XboxOutlet.info and XboxMarket.mobi.

Microsoft claims that Dr. Said operates the domains with the intent to divert Internet surfers looking for Microsoft’s products. "The person has been diverted from the Microsoft Web site he or she was seeking to visit, and Microsoft has lost the opportunity to interact with that person," Microsoft claims in the lawsuit. According to Microsoft, Said profited from the misdirection because his Web sites contain advertising for non-Microsoft products.

We are experts in all issues related to Domain Name law and cybersquatting. If you receive a cease and desist notice or are served with a lawsuit accusing you of cybersquatting, we can provide you with the expert legal representation necessary to fight against large corporations such as Microsoft.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Internet Solicitation of a Minor - Police Entrapment in the Internet Age

djr@icyberlaw.com (Cyber Lawyer) — Mon, 19 Nov 2007 03:03:00 GMT

It is becoming a common occurrence. In an Internet chat room, a minor will come in and request to chat privately with someone. Only that there is no such minor, but a police officer typing away through the night. Many have followed the bait. As the chat with the "minor" progresses, the conversation turns sexual in nature. After some chatting, the minor suggests a meeting in person.... setting up the police sting operation.

At this point, the psychology of Internet chatting comes in. Only a few subjects will actually attempt to meet this "minor." The large majority of chatters have no real interest or desire to actually meet a minor. We have had clients that have chatted with "minors" but utterly refused meeting them. Despite this refusal, the police will obtain a warrant for the person's arrest for several felony charges. The police will also confiscate the person's computers. In the absence of specialized legal representation, the presumption against bond may keep the person in jail for several months awaiting trial. A conviction may mean several years of jail time and lifetime registration as a sex offender, together with the social opprobrium associated with that term.

A person accused of this type of conduct requires the expertise of an attorney who not only understands criminal defense but also has the technical expertise to understand the underlying Internet technology. Cybercrime defense is the the area of Internet law where attorneys claiming to be super lawyers but lacking substance and relevant courtroom success will not excel. Similarly, old school criminal defense lawyers with no technical expertise will be unable to effectively question Internet evidence.

Our Internet sex crime defense team consists of a Computer Engineer and associated attorneys. We have effectively defended these crimes and have a unique track record and expertise.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Internet Defamation can cost you.... to the tune of $11.3 M

djr@icyberlaw.com (Cyber Lawyer) — Fri, 16 Nov 2007 18:46:00 GMT

Internet blogs continue to create litigation. The days when the courts would not intervene in matters involving Internet defamation resulting from Internet blog postings are behind us. Recently, a Florida woman was awarded $11.3 million dollars in damages resulting from postings made by a Louisiana woman accusing the Florida woman of being a "crook", a "con artist" and a "fraud."

The defendant in that case was not represented by counsel at the time the verdict was issued. Although it appears that in this case, the Defendant was affected by Hurricane Katrina in a manner that affected her ability to defend herself, the situation brings up a significant issue. Many misunderstand the impact and importance of Internet defamation accusations. The result can be financially devastating.

Bloggers and cyber gripers run a significant risk when they post their statements online. There is no such thing as a completely "anonymous" blog post. A competent Internet defamation lawyer who knows the technical aspects of the Internet and knows how to properly utilize the legal process can discover the identity of the author. At that point, the author must be prepared to utilize the services of a competent attorney to provide expert legal defense.

For more information regarding Internet defamation, please visit our Internet defamation website at www.cyberdefamationlawyer.com or our main Internet law website at http://www.cyberinternetlawyer.com

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law

Single mother ordered to pay $222,000 in Internet copyright infringement damages

djr@icyberlaw.com (Cyber Lawyer) — Mon, 08 Oct 2007 05:31:00 GMT

A Minnesota federal jury found Jammie Thomas guilty of copyright infringement. She now owes a total of $222,000.00 in damages to the RIAA. The copyright damages are based on the jury's valuation of $9,250 for each infringed recording. Under copyright laws, RIAA might have recovered up to $150,000 per song infringed.

This judgment can potentially shake up the way the P2P copyright infringement litigation game is played. The defense had some questionable moves, or lack thereof. Of note is that the defense relied almost exclusively on the theory that some hacker might have used Ms. Thomas' usual user name and her computer without her knowledge. Was it lack of knowledge of the technology involved, lack of knowledge of how to properly defend an Internet copyright infringement case, overconfidence, etc?

The lesson learned is that if you are accused of online copyright infringement or involved in any other Internet law related litigation, you are best served to seek the assistance of competent counsel. Competent counsel will not only claim to practice Internet Law, but will also have a proven successful litigation record as well as a technical resume that demonstrates in-depth knowledge of the complicated technological aspects of these matters.

Copyright 2007-2011 Domingo J. Rivera, Attorney At Law