Introducing SM Safety Services

Posted by on Oct 2, 2013 in Advertising and Marketing, Copyright, Employment and Labor, Litigation, Miscellaneous, Social Media, Trademark

Social media can be risky business.  Whether an organization embraces or ignores social media, it or its employees probably already have a presence on a social network.  That simple reality can be costly for an organization without proper measures in place to deal with the risks of social media misconduct.  Readers of this blog are familiar with cases where business saw their reputations marred by employees who post embarrassing photos online about work mishaps or found themselves in legal trouble for firing an employee who vented on Facebook about a co-worker.

To help organizations manage the risks of social media activity, I’m proud to introduce SM Safety, a new line of services offered by my law firm.  The approach of SM Safety can be summarized in three words, each corresponding to a level of service that meets a particular need: checkup, plan, and audit.

A SM Safety Checkup is a low-cost way to ensure that an existing social media policy is legally compliant and effective.

A SM Safety Plan is for organizations who need assistance with preparing a new social media policy or enhancing an existing policy.

A SM Safety Audit is a comprehensive review of an organization’s overall presence in the social media space to identify exposure to legal risks due to social media use.

Each SM Safety service is offered for a flat fee.  To learn more about SM Safety or to obtain a quote, visit the SM Safety Services page on this site.

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Amazon Stiff-Arms Plaintiff in Copyright Infringement Suit—Partially

Posted by on Jul 8, 2013 in Copyright

Amazon not vicariously liable for copyright infringement by hosting e-commerce platform for sale of allegedly infringing photo, but could be liable for contributory infringement –  Masck v. Sports Illustrated, 2013 WL 2626853 (E.D. Mich. June 11, 2013)

By MECU (Own work) [CC-BY-SA-2.5], via Wikimedia Commons

By MECU (Own work) [CC-BY-SA-2.5], via Wikimedia Commons

Amazon.com scored a partial victory in defending against a copyright infringement lawsuit.  The plaintiff in the lawsuit was photographer Brian Masck, who claims to have taken the sharpest photo of former University of Michigan football player Heisman Desmond Howard striking the iconic “Heisman pose” in a game where his team defeated archrival Ohio State University.  Masck claimed that unauthorized reproductions of his photo were offered for sale on Amazon.com.  Masck requested Amazon to stop selling copies of the photo on its website, but Amazon allegedly did not comply.  Masck sued Amazon and other sellers of the photo for copyright infringement.

Amazon filed a motion to dismiss the lawsuit, arguing that Masck could not bring a vicarious copyright infringement claim.  One requirement for vicarious liability for copyright infringement is the defendant’s right and ability to supervise the infringing conduct.  The court agreed with Amazon’s argument that it had no practical ability to determine which products being sold on its e-commerce platform were infringing.  Masck did not make specific factual allegations demonstrating that Amazon could plausibly verify the copyright status of each and every piece of merchandise it lists from third-party sellers.

Amazon did not fare so well in trying to dismiss Masck’s contributory infringement claim.  Selling infringing merchandise is considered a material contribution to infringement.  Amazon continued selling the alleged infringing photos even after Plaintiff requested their removal from Amazon’s website.  Plaintiff’s request should have alerted Amazon to potential infringement.  Based on that record, the court declined to dismiss the contributory infringement claim against Amazon.

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Court Carves Back Oracle’s Computer Fraud and Abuse Act Claims Against Alleged “Gray Market” Reseller

Posted by on Dec 8, 2012 in Copyright, Data Security, Litigation

California federal court finds no CFAA violation for disseminating software updates obtained from subscription to software support service, and requires fraud-based CFAA claims to be pled with particularity Oracle America, Inc. v. Service Key, LLC, 2012 WL 6019580 (N.D. Cal. Dec. 3, 2012).

Oracle, a supplier of enterprise hardware and software systems, was dealt a setback in its efforts to combat software piracy using the Computer Fraud and Abuse Act (CFAA).  Oracle customers can buy an annual contract for technical support services including the ability to download software updates from Oracle’s support websites.  Access to Oracle’s support websites requires a login and password, which are provided to purchasers of the optional support service.   Under the Terms of Use for the support websites, only users who have a support agreement with Oracle are authorized to receive software updates.

DLT was a member of the Oracle Partner Network (OPN), a program for third party companies interested in reselling Oracle hardware and software.  To facilitate their role as resellers, OPN members receive login-in credentials to access Oracle’s support websites.  Oracle alleged that DLT fraudulently used its access to obtain Oracle’s proprietary software patches and updates, which DLT then provided to its own customers.  Oracle further alleged that DLT gave its access credentials to Oracle’s websites to “unwitting third parties” (apparently including the Navy and FDA) who were unaware that DLT lacked authorization to do so.  Oracle sued DLT under numerous theories, including violations of the CFAA.

Certain CFAA claims alleged that DLT “exceed[ed] authorized access” in obtaining information from Oracle’s support systems.  The court agreed with DLT that dismissal of such claims was required under United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc).  In Nosal, an en banc panel of the Ninth Circuit ruled that misuse or misappropriation of information to which one has authorized access does not violate CFAA provisions based on access to a computer “without authorization or exceeding authorized access.”  Oracle’s complaint alleged that DLT used its access credentials for an unauthorized purpose (although Oracle apparently tried to distinguish Nosal by re-characterizing the complaint in subsequent briefing as alleging that DLT accessed Oracle’s websites without authorization).  That’s precisely the kind of conduct that Nosal said was not actionable under the CFAA, the court ruled.  However, DLT could still be liable under the CFAA for trafficking passwords to Oracle’s  support sites because such a claim is not based upon unauthorized access to a protected computer.

Oracle also ran into trouble with the requirement in Rule 9(b) of the Federal Rules of Civil Procedure that claims alleging fraud or mistake to be pled with particularity.  One of Oracle’s CFAA claims alleged that DLT “knowingly and with intent to defraud . . . exceed[ed] authorized access, and by means of such conduct further[ed] the intended fraud . . . .”  18 U.S.C. § 1030(a)(4).   The court concluded that the claim was “grounded” or “sounded” in fraud and thus subject to Rule 9(b).  Oracle did not adequately detail its fraud to meet the Rule 9(b) pleading requirement.

The one bright spot for Oracle in the decision was the court’s rebuff of DLT’s argument that Oracle did not properly allege damages.  Oracle alleged that it incurred costs as a result of investigating and conducting a damage assessment in response to DLT’s actions, and the court found that enough to satisfy the damage requirement.  The court also rejected a similar argument that Oracle did not sustain damages in excess of $5,000.  That argument referred to the fraud-based CFAA violation, an element of which is that the fraud resulted in the defendant obtaining “anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period[.]”  18 U.S.C. § 1030(a)(4) (emphasis added).  The $5,000 threshold is not meant to be a measure of damages, the court held.  Rather, the threshold refers to the value of the computer use relevant in determining whether a CFAA violation exists.  In any event, the court said, Oracle did allege that DLT obtained something of value, i.e., its software.

LegalTXTS Lesson:  If you’re in the Ninth Circuit, recovery under the CFAA for illicit use or dissemination of proprietary computer information is a challenge.  Liability for hacking into a computer system is well-established, see Mintz v. Mark Bartelstein & Associates, Inc., 2012 WL 5391779 (C.D. Cal. Nov. 1, 2012), and so is giving away passwords to protected sites as the Oracle decision teaches.  Asking permission to access your work computer “one last time” to delete personal files before switching jobs and then downloading a bunch of proprietary data also will get you in trouble (see Weingand v. Harland Financial Solutions, 2012 WL 2327660 (N.D. Cal. June 19, 2012), and my post on it here).

When it comes to misuse or misappropriation of information that was obtained with authorized access, however, Nosal makes it pretty clear that’s not a violation of the CFAA.  The Oracle decision follows that rule.  Other circuits, like the Third Circuit, go the opposite direction—hence decisions like Synthes, Inc v. Emerge Medical, Inc., 2012 WL 4205476 (E.D. Pa. Sept. 19, 2012), which held that it is a violation of the CFAA to induce employees of a competing company who have authorized access to the company’s computer system to download proprietary information and give it to you (see my post on it here).

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Owners of Unsecured Internet Networks Have No Legal Duty to Prevent Illegal Peer-to-Peer Sharing Activity on Their Networks

Posted by on Nov 27, 2012 in Copyright, Data Security

AF Holdings, LLC owns the copyrights to various porn videos.  AF Holdings has filed numerous copyright infringement actions against individuals who download and share its videos illegally through BitTorrent, an online peer-to-peer sharing tool.  Besides targeting the individuals actively downloading and sharing files—whose identities are often unknown and therefore end up being named as “Doe” defendants—AF Holdings goes after owners of the Internet connections used in the torrent activity (the “Network Defendants”).   AF Holdings sued the Network Defendants under a negligence theory.  AF Holdings alleged that the Network Defendants breached their duty to secure their Internet connections from third parties who use the connections for unlawful activity.  In a pair of similar lawsuits, the courts rejected AF Holding’s negligence claims.  See AF Holdings, LLC v. John Doe and Josh Hatfield, 2012 WL 3835102 (N.D. Cal. Sept. 4, 2012); AF Hodlings, LLC v. John Doe and John Botson, 2012 WL 4747170 (N.D. Cal. Oct. 3, 2012)

No legal duty to secure Internet connection to prevent copyright infringement

AF Holdings argued that the Network Defendants owed it a duty to secure their Internet connections to prevent infringement of AF Holdings’ copyrighted works.  The duty at issue was one of “non-feasance,” or the failure to take certain steps, as opposed to “misfeasance,” which involves activity putting the plaintiff in a worse position, such as exposing the plaintiff to risk of peril.  A duty arises in non-feasance situations when the plaintiff has a special relationship with the defendant.  Finding no special relationship between the Network Defendants and AF Holdings, the court concluded that the Network Defendants owed no legal duty to protect AF Holdings against copyright infringement.  The courts therefore dismissed the negligence claims.

Copyright Act preempts negligence claims

Part of the Network Defendants’ defense was that the negligence claims are preempted by the Copyright Act of 1976 because they seek protection for the same exclusive rights that the Act protects.  A state law claim is preempted by the Act when (1) the work at issue comes within the subject matter of copyright, and (2) the rights granted by state law are equivalent to the exclusive rights of copyright holders under section 106 of the Act.  The Network Defendants cleared the first test easily because AF Holdings’ videos clearly are protected by copyright.  In analyzing the second issue, most courts determine whether the state law claim contains an “extra element” that is different or in addition to a claim based on the Copyright Act.  The only “extra elements” in AF Holdings’ negligence claim were the elements of duty and breach of duty.  Since the Network Defendants had no duty to secure their Internet connections to prevent copyright infringement, the negligence claims had no extra elements to be saved from being preempted.  Essentially, AF Holdings repackaged its copyright infringement claim into a negligence claim.

CDA immunity applies

The Network Defendants also claimed immunity under the Communications Decency Act (“CDA”).  The court in the Hatfield case found it unnecessary to decide the issue given the dismissal of the negligence action on other grounds, but the court in the Botson case ruled that the defendant had immunity.  A defendant qualifies for CDA immunity if (1) it is the provider or user of an interactive computer service; (2) the cause of action treat the defendant as a publisher or speaker of information; and (3) the information at issue is provided by another information content provider.  Botson met these qualifications, the court found.  AF Holdings alleged that Botson was the provider of a computer service (i.e., the Internet connection) to pirate the videos.  AF Holdings also treated Botson as a copyright infringer or a participant in the infringement.  Finally, the information at issue (the videos) were provided by another content provider, namely the “Doe” defendant.

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That ’70s Defense?

Posted by on Jul 19, 2012 in Arts and Entertainment, Copyright

DMCA safe harbor provision applies to copyright infringement claims brought under state common lawUMG Recordings, Inc. v. Escape Media Group, Inc., 2012 WL 2847859 (N.Y. Sup. Ct. July 10, 2012)

A New York court ruled that the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) apply to copyright infringement claims brought under state copyright law.  UMG Recordings (UMG), a division of Universal Music Group, sued the owners of the online music service Grooveshark for violation of copyrights in sound recordings created before February 15, 1972.  Why that specific date?  We’ll find out shortly.  According to UMG, Grooveshark allows its users to upload digital copies of songs through its website.  Grooveshark then copies the songs to its servers, from which users of the website can retrieve and access the songs by running a search by song title or artist.

Grooveshark argued that it qualified for the “safe harbor” provision of the DMCA that protects a service provider from copyright infringement claims based on its storage of the offending materials at the direction of a user.  UMG countered that the safe harbor applies only to copyrights created under and protected by the U.S. Copyright Act.  The claims at issue, however, were based on New York State common law, not the federal Copyright Act.  And while the Copyright Act preempts state law in certain instances, common law copyrights created before February 15, 1972 are not federally preempted until 2067.

The court doesn’t buy UMG’s argument.  The court found no indication in the text of the DMCA that Congress intended to limit the applicability of the safe harbors to just recordings made after February 15, 1972.  The terms “copyright owner” and “infringing” in the DMCA safe harbor provisions were no less applicable to common law copyright than to statutory copyright. Therefore, the court refused to dismiss the safe harbor defense.

 

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