Packets: Wednesday, October 10, 2007, Volume 5, No. 1

Packets is production of the Stanford Center for Internet & Society (CIS). It is written by members of the Stanford Law and Technology Association (SLATA), and edited by CIS staff, fellows and volunteer attorneys. Our purpose is to provide the legal community with a concise description of recently decided cyberlaw-related cases, and where possible, to point to the original decisions. We urge you to forward Packets wherever you please, and to take from it any content you would like. The writers on the Packets Editorial Board are: Irene Hahn, Jacob Heller, Vinita Kailasanath, Julie Kane, Oh-Yoon Kim, Scott M Noveck and Juliana Tutt. Packets are online at: http://cyberlaw.stanford.edu/packets

 

Yahoo! has no Obligation to Publish Information; Ask.com not Liable for Indexed Third-Party Content under CDA
Plaintiff, a political candidate, brought action against Yahoo! Inc. for refusing to post his emails to their message boards, and IAC/Interactive Corp., the owners of Ask.com, to remove from their directory a website that made it appear in their search results that he was a member of the Communist Party. The court granted summary judgment for both defendants. The court found that Yahoo! was a private entity with no obligation to uphold First Amendment freedom of speech rights. The court found that IAC was protected by the Communications Decency Act of 1996, which immunizes “interactive computer services”, which includes search engines like Ask.com, from liability for information arising from third-party content.

 
Submission of a Reconstruction as Deposit Copy Invalidates Copyright Registration and Nullifies Federal Subject Matter Jurisdict
In Torres-Negrón v. J & N Records, L.L.C., the First Circuit determined two issues: whether the plaintiff composer’s submission of a tape recording of himself singing his song and clapping its rhythm by memory, without reference to his original work, met the deposit copy requirement of 17 U.S.C. § 408(b); and whether the failure to submit a deposit copy is a jurisdictional defect in a federal copyright infringement case. Affirming a decision of the United States District Court for the District of Puerto Rico, the First Circuit found that plaintiff’s copyright application was incomplete because it included only a reconstruction of the song, and not a bona fide copy. The court deemed this a material defect and thus denied federal subject matter jurisdiction.
Torres-Negrón v. J & N Records, L.L.C.

 

Website Terms and Conditions Governed After the Termination of Services Agreement, Despite Lack of Specific Acceptance of Terms
Conference America sued Conexant Systems for breach of contract. After terminating a services agreement with Conexant, Conference America billed Conexant per the terms and conditions available on their website. Conexant claimed the post-termination transactions were governed by the services agreement, while Conference America claimed that the services rendered after the termination were separate unilateral contracts governed by the website terms and conditions. The district court, on cross-motions for summary judgment, applying Alabama state law, held that the services provided post-termination were governed by the website’s terms and conditions. Conference America, Inc. v. Conexant Systems, Inc., No. 2:05-cv-01088-WKW, 2007 U.S. Dist. LEXIS 66867 (M.D. Ala. Sept. 10, 2007).

 

District Court Strikes Down Patriot Act’s Amendments to Foreign Intelligence Surveillance Act

The USA Patriot Act of 2001 amended the Foreign Intelligence Surveillance Act (FISA) to allow the government to undertake broad-based surveillance of subjects within the United States if the government certifies that a “significant purpose” of the surveillance is to obtain foreign intelligence information. This replaced the previous, more stringent requirement that obtaining foreign intelligence information be the “primary purpose” of the surveillance. The District Court held that these amendments violate the Fourth Amendment by allowing the government to conduct traditional criminal surveillance without satisfying any probable cause requirement.
Mayfield v. United States, Civil No. 04-1427-AA (D. Or. Sept. 26, 2007)
 
 

Ninth Circuit Strikes Down Contract Amendments Unilaterally Posted to Website
In granting a writ of mandamus, the Ninth Circuit Court held that where a customer had no occasion to check for revised terms of service on a web site, a revised contract posted only to that web site did not effect a change in the contract terms. Petitioner and class action plaintiff Joe Douglas originally contracted for long distance telephone service with America Online, which then sold the service to Respondent and defendant below Talk America. Talk America posted a revised contract on its website, but did not notify customers of the changes. The revisions included additional charges, a class action waiver, an arbitration clause, and a provision for New York choice of law. Douglas continued using the service unaware of the revised contract. When he became aware of the additional charges to his account, he filed a class action lawsuit in the Central District of California against Talk America for violations of the Federal Communications Act, breach of contract and violations of California consumer protection statutes. Talk America moved to compel arbitration based on the arbitration clause in the revised contract, and the district court granted the motion. Joe Douglas petitioned for a writ of mandamus on the district court’s order, and the Ninth Circuit granted mandamus relief, holding that the revised contract provisions were not binding on Douglas because “a revised contract is merely an offer and does not bind the parties until it is accepted,” and “an offeree cannot actually assent to an offer unless he knows of its existence.” Douglas v. U.S. District Court for Cent. Dist. Of California, 495 F.3d 1062, 1066 (July 18, 2007) (internal citations omitted). The Ninth Circuit also suggested that certain of the new provisions, including the arbitration and no-class-action clauses, were probably unconscionable under California law. http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1665312C85BA50868825731C...$file/0675424.pdf?openelement

 
 
Ninth Circuit Holds Section 605(e)(4) of the Communications Act Does Not Apply to End-users Employing DirectTV Piracy Devices
DirecTV, a satellite programming provider, sued two end-users of pirating technology, arguing that by removing and inserting previously disabled access cards that had been restored by an unlooper into DirecTV’s receivers, the users illegally assembled piracy devices in violation of the Federal Communications Act of 1934 (“FCA”), 47 U.S.C. § 605(e)(4). The United States Court of Appeals for the Ninth Circuit affirmed two district courts’ decisions denying default judgments under the FCA because the complaints failed to state violations of the FCA. The court rejected DirecTV’s argument that their access cards were devices “primarily of assistance in the unauthorized decryption of satellite cable programming.” The Court held that Congress intended section 605(e)(4) to apply to those making piracy devices for commercial purposes, which is punishable by a penalty of up to $100,000, rather than to end-users employing piracy devices for individual personal use, an act punishable by a maximum penalty of $10,000. , DirecTV Inc. v. Huynh, No. 05-16361 (9th Cir. Sept. 11, 2007)
 
 
Federal Circuit Holds “Trademark Disparagement” Not A Claim Under the Lanham Act
Defendant Tim Oey appealed a preliminary injunction preventing him from using the Internet to protest the trademark application of plaintiff, The Freecycle Network, Inc. (TFN), which was seeking to trademark the term “freecycle.” The case examined whether the Lanham Act allows a claim for “trademark disparagement” and whether trademark applicants may use the Act to suppress speech that opposes registration of a mark and encourages its generic use. The Court of Appeals for the Ninth Circuit held the Lanham Act does not allow such claims and vacated and remanded the district court’s order, holding that TFN could not enjoin Oey from expressing his objection to trademarking the freecycle name.
The Freecycle Network, Inc. v. Tim Oey and Jane Doe Oey, No. 06-16219 (Sept. 26, 2007).