Stanford Center for Internet and Society

On March 31, 2004, the Federal Court of Canada refused to force 5 internet service providers (“ISPs”) to reveal the identities of 29 anonymous subscribers accused of copyright infringement by members of the Canadian Recording Industry Association (CRIA). The Does had allegedly uploaded or downloaded music files via the p2p networks KaZaA and iMesh. According to the CRIA, each Doe had downloaded more than 1,000 songs. The court first recognized that the Does had an expectation that their subscriber information would be kept private based both on ISP user agreements and on Sections 3 and 5 of the Personal Information Protection and Electronic Documents Act (“PIPEDA”) (although PIPEDA allows for disclosure of this information without consent where a court order has issued). The court then laid out a five-prong test, borrowed from non-Internet discovery cases, for determining whether one party’s interest in pre-trial discovery outweighs another’s privacy rights*: (a) the applicant for discovery must establish a “prima facie case” against the alleged Doe defendant; (b) the person from whom discovery is sought, in this case the ISP, must be “more than an innocent bystander”; (c) this person must be “the only practical source of information” available; (d) this person must be “reasonably compensated” for expenses related to compliance with the discovery order; and (e) “the public interests in favour of disclosure must outweigh the legitimate privacy concerns” of the Doe.

Sixteen record companies who own or license copyrights in popular sound recordings in the United States filed a copyright infringement suit against twenty-five unidentified “John Doe” defendants for dissemination of plaintiffs’ copyrighted works unlawfully over the “Fast Track Network,” a peer-to-peer file sharing system. On April 1, 2004, the District Court of the Middle District of Florida ruled that the issues of personal jurisdiction and venue could be addressed after the defendants are identified, but that, contrary to plaintiff’s contentions, the court does not have to wait to address the joinder question (which requires determining whether severance will prejudice any party or result in undue delay of the litigation). Instead, the Court ruled that all claims except those by the first plaintiff against the first defendant be severed, and that they be be dismissed unless separate new actions, with proper plaintiffs and defendants, are initiated within eleven days of the court order.Plaintiffs relied on Civil Rule of Procedure 20 that allows permissive joinder of claims by plaintiffs or against defendants if the claims “aris[e] our of the same transaction, occurrences, or series of transactions or occurrences and if any question of law or fact common to all these person will arise in the action.” Fed. R. Civ. P. 20(a). The determination of whether claims arise out of the same transaction or occurrences for purposes of Rule 20 is determined on a case-by-case basis. Mosley v. General Motors Corp., 497 F.2d 1130, 1333 (8th Cir. 1974). Applying the transactional test for permissive joinder, which requires that the parties must assert rights (or have rights asserted against them) that arise from related activities, the court found that the claims in the case were not reasonably related or properly joined.

Robert Novak, former owner of the website Petswarehouse.com, filed a pro se suit against Google, Overture Services, Kanoodle, Judge-for-Yourself.com, and Biochemics in the Eastern District of New York, alleging trademark infringement and unfair competition among other claims. Novak alleged that the defendant owners of Internet search engines, contracted with the other defendants to manipulate website searches involving the words “pets” and “warehouse” such that the defendants’ websites appeared at the top of the search results instead of Novak’s website. Novak claimed that this arrangement was trademark infringement, a deceptive trade practice, and unfair competition. Novak also alleged that Google breached its own terms and conditions by refusing to remove material from its online discussion groups that Novak found offensive and that this refusal tortiously interfered with contractual relations. The defendants filed motions to dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim. Defendant Google filed a motion to dismiss for improper venue and failure to state a claim with respect to Novak’s breach of contract claim. The court dismissed this count of Novak’s complaint, holding that Google is immune from liability under 47 U.S.C. § 230, which provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The court also held that a forum selection clause in Google’s terms and conditions is enforceable and dismissed all claims based upon the performance of those terms and conditions for improper venue.

IMS Inquiry Management Systems Ltd. sued competitor Berkshire Information Systems Inc. in the United States District Court for the Southern District of New York for damages and injunctive relief arising from Berkshire’s alleged unauthorized access to and use of IMS’s e-Basket advertisement tracking system. Such access, achieved by obtaining a user’s ID and password, caused that third party to breach its contract with IMS resulted in the copying of eighty five percent of IMS’s report formats. Thus, this case brings about several claims, out of which we will single out those under the Computer Fraud and Abuse Act, the Copyright Act, and the Digital Millennium Copyright.Computer Fraud and Abuse Act claim

On March 12, 2004 a New York District Court asserted jurisdiction over iMesh.Com, Inc., a file sharing company incorporated in Delaware, and its Israel-based subsidiary. Plaintiffs, a group of music recording companies, alleged that defendants operated an online peer-to-peer file sharing service which encourages and facilitates unlawful copying and distribution of plaintiffs’ sound recordings, thereby infringing their copyrights under U.S. copyright law. The Court denied defendants’ motion to dismiss, which was based on lack of personal jurisdiction, the doctrine of forum non conveniens and the plaintiffs’ failure to state a claim.First, the Court stated that personal jurisdiction may be exercised if New York’s long arm statute allows it and if the assertion of jurisdiction would comport with the requirements of due process. According to the Court, for the latter requirement to be met, defendants must have had “minimum contacts” with the State of New York and the assertion of jurisdiction must comport with “traditional notions of fair play and substantial justice”, which means that the exercise of jurisdiction must be reasonable under the circumstances of the particular case.