Packets: Tuesday, February 24, 2009, Volume 6, No. 3

Packets is a 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: Stuart Loh, Ranjini Acharya, Alex Harris, José Mauro Decoussau Machado, Matt Kellogg, Robert Orlando Lopez, Jenny Kim, Morgan Galland and Allison Pedrazzi Helfrich. Packets are online at: http://cyberlaw.stanford.edu/packets

 

DMCA Safe Harbor for Service Providers Also Protects Non-Storage Activities Designed to Facilitate Access to User-Stored Content

Author: Stuart Loh

Universal Music Group (“UMG”) sued Veoh Networks, Inc. (“Veoh”), an Internet-based service that allows users to share videos online, for copyright infringement. In the present proceedings, UMG moved for partial summary judgment that Veoh was not entitled to protection under 17 U.S.C. § 512(c), a safe harbor of the Digital Millennium Copyright Act designed to shield a service provider from liability arising from infringing conduct occurring “by reason of storage at the direction of the user.” In addition to storing videos uploaded by users, Veoh engaged in other activities (e.g., converting the format of the videos) to provide other users with access to them. UMG argued that because those other activities do not actually constitute storage, Veoh may not rely on § 512(c) as a shield to liability. The court denied UMG’s motion and rejected UMG’s narrow interpretation of the phrase “by reason of,” holding that such an interpretation was not consistent with its common meaning and that it would undermine the ability of § 512(c) to shield service providers from liability if they did anything with user-uploaded materials other than store it untouched. Instead, the court held that § 512(c) covers Veoh’s activities because they were designed to facilitate access to user-stored content.

 

English Court Allows Defamation Action to Proceed Despite Evidence of Low Readership

Author: Ranjini Acharya

John Alexis Mardas, a former associate of the Beatles, has won the right to bring defamation proceedings against the New York Times and the International Herald Tribune in an English court for publishing an article that described him as a “charlatan” who spread false rumors about the Beatles that may have resulted in the band’s breakup. Evidence in the case established that there were less than 200 hundred hard copies of the article published and approximately 30 hits of the story online. In allowing the case to proceed, Justice Eady of the English High Court held that the determination of “substantial publication,” in the context of online defamation cases, “cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case.”

 

Author: Alex Harris

The Fourth Circuit upheld the conviction of a man who downloaded, among other content, graphic illustrations of fictional minors engaged in sexual acts, and text emails describing fictional minors engaged in sexual acts. Federal law prohibits receiving obscene depictions of “a minor engaging in sexually explicit conduct.” 18 U.S.C. § 1466A(a). The court held the statute constitutional on its face, and as applied to downloading materials from the Internet. Receiving content via the Internet, the court said, constitutes trafficking in commerce. It is therefore unlike mere possession of obscenity in one’s home, as is protected by the First Amendment and Stanley v. Georgia. Further, the court held that text and drawings can be obscene and prohibited without violating the First Amendment.

Second Circuit Partially Invalidates National Security Letters Section of the Patriot Act on First Amendment Grounds

Author: José Mauro Decoussau Machado

Citing the First Amendment, the Second Circuit invalidated provisions of the Patriot Act that permit the FBI to impose a nondisclosure requirement on National Security Letters without having to seek judicial review. The court also declared unconstitutional provisions that consider as conclusive a governmental official’s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations.

Google Books Reaches Settlement With Publishers And Authors

Author: Matt Kellogg

Google recently reached a settlement agreement with the authors and publishers who in 2005 sued the company for copyright infringement. As part of the arrangement, copyright owners will not only receive fees from Google for the use of digitized copies of their books in Google Book Search, they will also have the ability to choose how much—if any—of their works they wish to be displayed. The settlement provides for the creation of an independent organization to oversee its administration as well as special modes of access for public and university libraries.

Author: Robert Lopez

John Doe sued SexSearch.com, an online adult dating service, alleging fourteen violations of Ohio law. Each count attempted to hold SexSearch.com liable for Doe’s illicit relationship with a minor who misrepresented her age in violation of SexSearch.com’s terms of use. The Sixth Circuit upheld the ruling of the Northern District of Ohio, but refused to adopt its reading of the Communications Decency Act (CDA). 47 U.S.C § 230(f)(2). The court stated that the district court “read § 230 more broadly that any previous Court of Appeals decision” and that such a reading could “potentially abrogat[e] all state or common-law causes of action brought against interactive Internet services.” Instead, the Sixth Circuit invalidated all fourteen claims holding that each one failed to state a valid claim under Ohio law.

Court Upholds Forum Selection Clause in Web Hosting Agreement

Author: Jenny Kim

The U.S. District Court for the Northern District of California dismissed Bennett v. Hosting.com for improper venue last November. The plaintiff’s company, HowFastTheyGrow.com, had signed an agreement to litigate all disputes in Jefferson County, Kentucky when contracting the defendant’s web-hosting services. The court upheld the forum selection clause despite Bennett’s contention that it was unenforceable for unconscionability and inapplicable to her tort claims.

First Amendment Protects Modified Use of Strip Club’s Trademark in Controversial Video Game

Author: Morgan Galland

In E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., the United States Court of Appeals for the Ninth Circuit ruled that the makers of a popular video game did not violate section 43(a) of the Lanham Act by depicting a modified version of plaintiff’s Los Angeles strip club. On Appeal from the United States District Court for the Central District of California, the Ninth Circuit upheld a summary judgment decision for defendants, holding that use of a modified trademark in a video game to create a parody of a real setting is protected under the First Amendment of the United States Constitution. In doing so, it expanded the traditional application of the test developed by the Second Circuit in Rogers v. Grimaldi, 875 F.2d 994, 999 (2nd Cir. 1989).

Arizona District Court Rules Website Targeting Plaintiff Does Not Create Jurisdiction in Plaintiff’s Home State

Author: Allison Pedrazzi Helfrich

In January 2008, Jan Kruska filed defamation, cyberstalking, and other claims against Perverted Justice Foundation, Inc. (and other defendants), for disseminating rumors on various websites that Kruska was a convicted child molester and a pedophile. In December 2008, a U.S. District Court in Arizona dismissed the complaint against Perverted Justice Foundation based on a lack of personal jurisdiction. Perverted Justice is a non-profit corporation based in California and Oregon and has no licenses or designated agent for service of process in Arizona, conducts no business with Arizona, and is not incorporated in Arizona. The court held there could be no general jurisdiction over Perverted Justice “in the absence of these types of contacts that approximate physical presence in Arizona.” The plaintiff argued, however, that Perverted Justice made her a target of its online activities and therefore became subject to jurisdiction in Arizona by expressly aiming its tortious actions at the forum state. Although the court recognized the “effects test” basis for jurisdiction, it held that the “essentially passive nature” of Perverted Justice’s activity in posting a website with a low degree of interactivity is not sufficient to establish specific jurisdiction.