Packets: Volume 2, No. 5

Broad searches at border crossings – including those of “expressive” electronic material – do not violate Fourth or First Amendm
by Lauren Gelman, posted on February 15, 2005 - 5:51pm

The Fourth Circuit Court of Appeals considered the extent to which a federal statute authorizes broad and expansive border searches by U.S. customs officials and whether such searches violate Constitutional protections in the Fourth or First Amendments. In particular, the case focused on the detailed examination at a border crossing, without a warrant, of electronic equipment purporting to contain “expressive material.”The case arose when defendant, crossing into the U.S. from Canada, raised the suspicion of customs agents who then conducted an extensive search of his vehicle. After finding evidence of child pornography in photo albums, they proceeded to examine defendant's computer and several computer disks, which also contained similar illegal material.

Packets Archive: Packets, Vol. 2, No. 5
Court grants summary judgment in favor of music companies against a direct infringer for downloading songs
by Lauren Gelman, posted on February 15, 2005 - 5:49pm

BMG Music along with other recording companies brought an action for infringement of copyright against Cecilia Gonzalez, for having downloaded 30 songs onto her home computer. The defendant admitted to having downloaded the songs, thereby directly infringing the copyright of the plaintiff recording companies. She sought immunity for her actions, however, under the dual defenses of fair use and innocent infringement. The District Court for the Northern District of Illinois rejected her defenses and granted summary judgement in favor of the plaintiffs. Additionally, the court rejected the defendant’s arguments for mitigation of damages.

Packets Archive: Packets, Vol. 2, No. 5
Utah Appeals Court Holds Internet Pop-Up Ads Not Regulated by State Statute Governing Unsolicited Commercial E-mail
by Lauren Gelman, posted on February 15, 2005 - 5:48pm

Jesse Riddle filed an action under Utah’s Unsolicited Commercial and Sexually Explict Email Act (the Act) (repealed effective May 3, 2004) in the Third District Court of Utah against Celebrity Cruises, Inc. (Celebrity), claiming that a Celebrity pop-up ad that he had received while web-surfing violates the Act’s provision that unsolicited commercial e-mail be appropriately marked so that users can delete the e-mail without ever viewing its content. In October 2003, the District Court granted summary judgment to Celebrity after denying Riddle’s motion to conduct further discovery in response to Celebrity’s summary judgment motion. Riddle appealed both the grant of summary judgment and the denial of his motion for further discovery to the Utah Court of Appeals. The Court reviewed the grant of summary judgment as a question of law, without deference to the trial court. The denial of the motion for further discovery was reviewed on an abuse of discretion basis.The Court ruled for appellee Celebrity, holding that internet pop-up ads are not regulated by the Act based on the plain language of the statute read as a consistent whole. The Court found the statutory language clear and unambiguous, and therefore found no reason to review legislative history. It also reviewed the statute as a whole so that the meaning applied to “e-mail” would be consistent with all of the provisions of the statute, and would not render any provisions superfluous, which the Court is "loathe to do." The Court found “e-mail”, for purposes of this statute, to be an electronic letter, targeted at a specific address held by a Utah resident or an e-mail service provider within Utah. The statute required that unsolicited commercial e-mail provide the designation “ADV:” in its subject line so that a user can recognize the nature of the email and delete it without being required to view it or open it. Utah Code Ann. § 13-36-103(b)(i). The Court found that pop-up ads cannot be “e-mail” because pop-ups are not targeted at a specific user, but rather appear whenever a particular web page is opened on a browser. The statutory provision referring to a subject line would be rendered superfluous for pop-up ads. Id. Also, even if Celebrity's pop-up ad were viewed as "e-mail" it would be considered solicited because of the user’s action to open the website originating the pop-up. Thus, the pop up ad would fall outside the scope of the Act, which only regulates "unsolicited" emails.

Packets Archive: Packets, Vol. 2, No. 5
8th Circuit Rules Against RIAA In DMCA Case
by Lauren Gelman, posted on February 15, 2005 - 5:46pm

The U.S. Court of Appeals for the Eighth Circuit ruled that subpoenas ordering Charter Communications, an Internet service provider (ISP), to turn over personal information on users suspected of copyright infringement, were improperly issued and therefore not enforceable. The decision overturned a November 2003 District Court decision, which refused to quash the subpoenas, issued at the request of the Recording Industry Association of America (RIAA), a trade group representing record companies.The Appeals Court based its decision on an interpretation of the Digital Millennium Copyright Act (DMCA), a 1998 law designed to protect intellectual property rights on the Internet. The DMCA provides that copyright holders may direct subpoenas to ISPs requiring the ISPs to turn over the names and identifying information of users suspected of infringing copyrighted works. But the Court found that the provision allowing copyright holders to subpoena ISPs did not apply to cases in which an ISP served only as a “conduit” for allegedly infringing materials, but rather only to cases in which an ISP actually hosted, cached, or linked to allegedly infringing materials.

Packets Archive: Packets, Vol. 2, No. 5
District of Columbia Circuit Upholds Determination of Web Broadcasting Copyright Royalty Rates by Librarian of Congress
by Lauren Gelman, posted on February 15, 2005 - 5:45pm

The District of Columbia Circuit Court of Appeals upheld a final rule issued by the Librarian of Congress that set copyright license rates for non-subscription-based Internet broadcasters for a period from October 1998 through December 2002. At issue was the legitimacy of the first ever determination of royalty rates and terms for "webcasting," the practice of streaming music over the Internet, and "simulcasting," the concurrent broadcast of music over both radio waves and the Internet. Three broad groups of petitioners appealed the ruling: copyright owners ("Owners"), who were licensing their works for webcast; webcasters and simulcasters ("Broadcasters"), the statutory licensees; and parties who had not participated in the CARP proceedings below but who sought to join the appeal as "aggrieved parties" ("Non Participants"). Statutory license in webcast performances were first established in 1998 by the Digital Millennium Copyright Act ("DMCA"). The DMCA directs the Librarian of Congress to convene a Copyright Arbitration Royalty Panel ("CARP") if copyright holders and web broadcasters cannot reach agreement among themselves on royalty rates. 17 U.S.C.§114(f)(2)(B). Based on information presented by those parties, the CARP attempts to determine the license rates and terms that would be reached in a free market. The Librarian then renders a final rate-setting decision based on the CARP's report.

Packets Archive: Packets, Vol. 2, No. 5
No Right to Privacy in Employer’s Computer, Washington Appeals Court Rules
by Lauren Gelman, posted on February 15, 2005 - 5:43pm

Appellant, Jack Leck II, was convicted of 46 counts of possession of depictions of a minor engaged in sexually explicit conduct under Washington law. Prior to arrest, the appellant had spent one week volunteering with the World Peace Ambassadors. During that time he had access to a computer in an unlocked area of the office. He was the primary user of the computer, but he did not have a password for the computer, nor a key to the office area. The CEO of the WPA, Ryan Malane, also had access to the computer and occasionally used it.On April 18, 2003, police officers visited WPA headquarters. The appellant was not present at the time. Mr. Malane granted permission to the officers to search the office and the computer. During their search of the computer the officers found numerous pornographic images of minors stored in the web browser cache directory. Investigators later found an extensive Internet search history including over 500 searches, of which 85% were related to child pornography. Evidence from the computer led investigators to find that Mr. Leck’s Hotmail account contained email from several child pornography trading rings. Mr. Leck was sentenced to 48 months imprisonment for 46 counts of possession of child pornography.

Packets Archive: Packets, Vol. 2, No. 5

US Court of Appeals finds that the receipt and storage of customer e-mails by ISPs does not constitute “interception” under the

by Lauren Gelman, posted on February 15, 2005 - 5:41pm

Plaintiff Peter Hall intended to promote via e-mail the premiere of his first produced movie “Delinquent” at the Chicago Underground Film Festival on August 13,1997. On August 5, 1997 the Defendant Earthlink was notified by UUNet (a backbone provider) that Hall’s account was sending mass junk mail, which led to the (i) termination of Hall’s access to the account; and (ii) placement of his e-mail address on “Net Abuse Report” – weblist of e-mail abusers. Two days before the premiere of the movie and after a series of exchanges between the parties, it was determined that Hall’s messages were not spam. Earthlink posted a retraction on the Net Abuse Report and forwarded to Hall the e-mails that were sent to his “blocked” Earthlink account over the past days.