Stanford Center for Internet and Society

Passport Entertainment, which produced and sold “The Definitive Elvis,” a 16- hour video documentary about the life of Elvis Presley, appealed a preliminary injunction granted by the district court for the Central District of California to owners of copyrights in Elvis Presley- related video clips, photographs, and music. On November 6, 2003, the Ninth Circuit affirmed the preliminary injunction.Passport argued that the preliminary injunction is unconstitutional because (1) Passport can present a plausible fair use defense; (2) the preliminary injunction might be an unconstitutional prior restraint; and (3) some prior cases have refused to grant preliminary injunctions based on First Amendment principles. The ninth circuit held because the copyright owners filed the suit within two months after Passport published the documentary, the injunction was not a prior restraint. As for the third claim, First Amendment concerns are subsumed within the fair use inquiry in copyright cases. Consequently, if the use of the alleged infringer is not fair use, there are no First Amendment prohibitions against granting a preliminary injunction. Fair use is the only issue in contention on the merits for the grant of a preliminary injunction.

The Superior Court of California upheld the online posting of an image of the California coast line, including a view of the Streisand estate in Malibu, made for the California Coastal Records by Kenneth Adelman, which Streisand sought to have removed. The picture is one of 12,200 shot and posted by Adelman on Layer42.net, the website through which he makes thes images available to individuals interested in pictures of this natural resource.Streisand filed a suit for injunction on three causes of action, (i) intrusion into seclusion, (ii) publication of private facts and (iii) violation of her general right of privacy under the California Constitution. Her suit was countered by an anti-SLAPP action from Adelman, who succeeded in demonstrating that the posting of the images was an exercise of his First Amendment rights in connection with a public issue: the protection of the California coastline.

Southeastern Wisconsin municipalities collect various data regarding properties located on their territory (address, owner’s name, the age of the property, its assessed valuation, the number and type of rooms, etc.) in order to assess the value of the properties for property-tax purposes. These data are collected by tax assessors hired by the municipalities, who visit the property and by talking to the owner and poking around the property itself to obtain the information. Assessment Technologies (“AT”) has developed and copyrighted a computer program, called “Market Drive”, for compiling these data into a searchable database. Three southeastern Wisconsin municipalities use Market Drive under a license from AT. The tax assessor hired by the municipalities types into a computer the data that he has obtained from his visit to the property, and then the Market Drive program, in conjunction with Microsoft Access, automatically allocates the data to 456 fields (categories of information) grouped into 34 master categories (tables). Several types of data relating to the property, each allocated to a different field, are grouped together in a table called “Income Valuations,” others in a table called “Residential Buildings,” etc. The data collected and inputted by the tax assessors are stored in an electronic file, the database. The municipalities’ tax officials can use various queries in Market Drive to view the data in the database.

In 1999, Cremers, who was an operator of website Museum Security Network, posted an allegedly defamatory e-mail from Smith, suggesting that Batzel’s art work is related to Nazis. Batzel sued for libel and defamation and won at the Californian District Court in 2001. The district court declined to extend the legislative grant of immunity pursuant to Title 47 U.S.C. Section 230(c) to Cremers and the Network, holding that the Network is not "an internet service provider" and therefore is not covered by the statute. Section 230(c)(1) of the Communications Decency Act states 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."On Cremers’ appeal, the 9th Circuit affirmed the district court’s decision earlier this year, saying that Batzel did demonstrate a probability that she will prevail on the merits of her complaint, but also ruled that Cremers could not be considered the content provider of the e-mail for purposes of the statute, because it did no more than select and make minor alterations to Smith’s email, thus finding the operator covered by Section 230(c). It held that "a service provider or user is immune from liability when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider would conclude that the information was provided for publication on the Internet." However, the question remains whether Smith can be said to have “provided” his e-mail in the sense intended by Section 230, so the court remanded to district court for further proceeding to evaluate the issue of fact as to “whether the operator could have reasonably concluded that, because the e-mail arrived via a different e-mail address, it was not provided to him for possible posting on the listserv”.

WhenU.com, Inc. (“WhenU”) makes software that observes what web sites a consumer visits and what terms he or she searches for on the Internet. Based on those observations, the software presents targeted “pop-up” advertisements on the user’s screen. These advertisements appear as separate windows which contain information about the advertiser’s company or product. In many cases, when a person goes to the website of a particular company, the software will present an advertisement for a competitor of that company.Wells Fargo and Quicken Loans are companies whose web sites trigger WhenU’s software to present an advertisement for competitors. These companies sued WhenU, claiming that WhenU’s pop-up ads constitute both a derivative work infringing plaintiffs’ copyrights and an infringing use of plaintiffs’ trademarks under the Lanham Act. WhenU, in turn, claims that because WhenU does not actually cause the display of data belonging to the plaintiffs, and because WhenU’s pop-up advertisements appear in separate, individually labeled windows, WhenU’s software does not create a derivative work or infringe plaintiffs’ trademarks.