Stanford Center for Internet and Society

America Online moved to dismiss a claim against it in New York City Small Claims Court because the plaintiff had expressly agreed to exclusive jurisdiction in Virginia in the terms of service agreement. The judge applied the law that forum selection clauses are prima facie valid if actually consented to unless enforcement is unreasonable or unjust, the agreement was reached by fraud or overreaching, or going to the agreed-upon jurisdiction is so onerous that the plaintiff will not have the opportunity to “have his day in court” Scarcella v. America Online Inc., N.Y. Civ. Ct., No. 1168/04, N.Y. Slip Op. 51021(U). 9/09/04. Actual consent to jurisdiction by signature on paper is usually given effect because the signatory is presumed to know the contents of what was signed. British West Indies Guar. Trust Co., Ltd. v. Banque Internationale a Luxenbourg, 567 N.Y.S.2d 731 (1991). However, this Court found that the mode America Online used to elicit agreement to jurisdiction was deceitful and should thus invalidate the forum selection clause. The user was enticed to skip reading the online contract by the statement “Because [the agreement is] lengthy, and while we encourage you to take the time to read [it] now, we understand if you are eager to just go on and explore the service.” Scarcella v. America Online Inc., supra. If one did not click, “I Agree” and wanted to read the agreement, another enticement was given to not read it. While the judge did not find that deception or fraud was involved, her tone indicated that she did not think highly of the manner in which America Online obtained consent.

In an order dated October 6, 2004, the D.C. Circuit refused to rule on a a writ of mandamus filed by the United States Telecom Association seeking to invalidate interim rules that had been issued by the Federal Communications Commission (FCC) in August, 2004. The D.C. Circuit gave the agency until January 4, 2005 to draft permanent rules that conform to an earlier decision of the court overturning the agency's previous effort to implement the Telecommunications Act of 1996. The Telecommunications Act of 1996 (the Act) sought to foster a competitive market in telecommunications by helping new entrants in the field to compete against incumbent local exchange carriers (ILECs). In order to achieve this objective, the Act gave the FCC broad powers. These powers included requiring ILECs to make "network elements" available to other telecommunications carriers and the competitive local exchange carriers (CLECs). Congress delegated to FCC the authority to decide which elements to unbundle, based on the agency’s determination that the failure to provide access to a particular network element would impair the ability of the telecommunications carrier seeking access to provide the services that it seeks to offer (47 USC § 251(d)(2) (articulating the “impairment” standard)).

Jean Martignon was indicted by a federal grand jury on one count of violating § 2319A, because he sold unspecified “unauthorized recordings of live performances” to the public through his business, Midnight Records. In his motion to dismiss the indictment, the defendant argues that § 2319A is unconstitutional on the grounds that it exceeds the authority vested in Congress by the Copyright Clause of the Constitution (as well as on two other ground, not considered because the Court finds his first argument persuasive). § 2319A was passed in 1994 as the United States’s implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which was part of an international trade treaty, the URAA. Each of the 111 countries that signed the URAA, including the U.S., was required to pass legislation to implement TRIPs, and 18 U.S.C. § 2319A fulfills the U.S.’s obligation toward that end. The opinion notes that the U.S. was a driving force behind the adoption of TRIPs.

In November 1995, model June Toney authorized Johnson Products to use her image on packages of a hair-care product for five years pursuant to a written agreement. Subsequently, Johnson Products sold the hair-care product line to L’Oreal USA, Inc. which, in turn, sold the product line to Wella Personal Care of North America, Inc. Wella continued to market and distribute the hair-care product with Toney’s likeness.In her suit, Toney alleged that Johnson Products, L’Oreal and Wella violated her publicity rights under the Illinois Right of Publicity Act (“IRPA”) by continuing to use her image beyond the authorized time period. Initially, Toney brought suit under the IRPA and the Lanham Trademark Act. The district court found that the IRPA-based claim met both conditions set out in § 301 of the Copyright Act (“Act”) and was therefore preempted. Toney later voluntarily dismissed her Lanham Act claim with prejudice, and the case was closed. Toney then appealed the district court’s preemption determination.

Plaintiffs, Wolf and Buckingham, officers of Integrated Capital Associates, Inc (ICA), were embroiled in commercial litigation in New York against defendants, Farey-Jones. During the discovery process, defendants and its attorney (Iryna Kwasny) subpoenaed ICA’S ISP, NetGate for “all copies of e-mails sent or received by anyone at the company”, without limitation as to time or subject matter, and as a result they were given access to339 of ICA’s e-mails, most of them unrelated to the litigation and many privileged and personal. In a separate action, the Court found that the subpoena was massively overbroad and unlawful and that defendants acted in bad faith and showed gross negligence in the crafting of the subpoena. The Court granted motion to squash the subpoena and “socked” defendants with over $9000 in sanctions to cover Wolf and Buckingham’s legal fees. Defendants did not appeal that award.

Blizzard Entertainment, maker of the popular computer games
Diablo, WarCraft, and StarCraft, won its case in the Eastern District of Missouri against three programmers who had developed an alternative implementation of its online multiplayer server software. The defendants reverse engineered the network protocol Blizzard games use to communicate with Battle.net. From the messages sent between the game and server program, the defendants created a server program called bnetd that mimicked Battle.net's operation, enabling users of Blizzard games to play each other over the Internet without using Blizzard's proprietary online multiplayer service.

An Internet Service Provider (“ISP”) received a national security letter (“NSL”) from the FBI pursuant to 18 U.S.C. §2709. This statute was originally enacted as part of Title II of the Electronic Communications Privacy Act of 1986 (“ECPA”) and was most recently by the USA Patriot Act of 2001. Section §2709 allows the FBI to issue a NSL that requires communications firms to produce subscriber information to an associate director of the FBI. The firm that receives the NSL is not allowed to disclose the receipt of the NSL to any other person. The ISP that received this NSL, with the ACLU, filed a complaint alleging that section 2709 is unconstitutional under the First, Fourth, and Fifth Amendments to the U.S. Constitution. The Plaintiffs argued that the statuteviolated the Fourth Amendment because it allowed the FBI access to private information of subscriber records without any judicial checks or balances and the non-disclosure section in the statute violated the First Amendment. The District Court granted summary judgment in favor of the plaintiffs agreeing the Fourth Amendment was violated because the statute “bars or substantially deters any judicial challenge” (2004 WL 2185571, 1 (S.D.N.Y.)) and the First Amendment was violated because the non-disclosure clause is an indefinite restriction of speech.

The U.S. District Court in Minnesota considered whether a Minnesota statute that regulates customer notification of and agreement to changes to wireless telecommunication service contracts violates 47 U.S.C. Sec. 332(c)(3)(A), a Federal statute that prohibits states from regulating wireless rates. According to the Minnesota statute, if a wireless company would like to make a substantive change to the customer’s contract for wireless services, it must notify the customer 60 days before the modification is to take effect and obtain permission from the customer. If the customer is not notified or does not agree with the changes, the original contract terms will apply. Increases in taxes and government fees that are passed along to consumers are not considered “substantive” changes. A group of wireless companies sought an injunction against the Minnesota statute, arguing that it is a form of state rate regulation prohibited by 47 U.S.C. Sec. 332(c)(3)(A). The court first considered whether the injunction would succeed on the merits. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F. 2d 109, 113 (1981).

Representatives Christopher Shays (R-Conn.) and Marty Meehan (D-Mass) filed suit against the Federal Elections Commission (FEC), challenging the regulations developed pursuant to the mandate of the Bipartisan Campaign Reform Act (BPCA) of 2002, an act intended to limit the use of “soft money” in political campaigns.The BCRA expanded the criteria used to determine whether political communication is “coordinated” with a political campaign, allowing “content-based” as well as “conduct-based” factors to be considered. Such “coordinated” political communication is treated as a de facto financial contribution to that political campaign, and thereby subject to relevant campaign finance rules.

Access Now, Inc., a non-profit organization, and Robert Gumson, a visually impaired individual, appealed a federal district court’s dismissal of their claim against Southwest Airlines Company (“Southwest”) under Title III of the Americans with Disabilities Act (“ADA”). The case centers on the accessibility of Southwest’s website, Southwest.com, to visually impaired individuals who use the Internet through a software program called a “screen reader.” The “screen reader” converts graphics and textual information on the monitor into speech that an electronically synthesized voice reads out through computer speakers. Southwest.com’s use of unlabeled graphics, inadequately labeled data tables, online forms inaccessible to the blind, and lack of a “skip navigation link” make it impossible for visually impaired individuals to access the services and features of Southwest.com.The district court dismissed with prejudice, finding that Southwest.com is not a place of public accommodation and therefore not covered under Title III. Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp.2d 1312, 1322 (S.D. Fla. 2002). The district court held that “to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure.” Id. at 1318. All of the counts in the complaint focused entirely on the inaccessibility of the website as a place of public accommodations and made no connection between Southwest.com and any physical location.