Sex, Apps, and Rock-and-Roll

Posted by on Aug 22, 2013 in Litigation, Trademark

Rock legend gets to continue lawsuit against HP for selling penis-measuring app named after himEvans v. Hewlett-Packard Co., 2013 WL 4426359 (N.D. Cal. Aug. 15, 2013)

English: Photo of Chubby Checker when he was i...

(Photo credit: Wikipedia)

Want to test the urban myth that a man’s shoe size is a good measure of his you-know-what?  Well, there’s an app for that.  Or there was.  And the app store that sold it is being sued by the app’s namesake, who isn’t thrilled that his name was associated with a digital ruler for male nethers.

“The Chubby Checker” was an app for estimating the size of a man’s genitals based on his shoe size.  Hewlett-Packard’s subsidiary, Palm, Inc., offered the app for sale on its app store.  The name of the app is a pun based on “Chubby Checker,” the stage name of rock-and-roll legend Ernest Evans.  Evans and the companies who owned registered marks associated with the name “Chubby Checker” sued HP and Palm for trademark infringement and dilution, federal unfair competition, and various state law claims.

The defendants tried unsuccessfully to dismiss the trademark infringement claim.  The complaint sufficiently alleged a claim of contributory infringement against the defendants, the court found.  Plaintiffs alleged that the “Chubby Checker” name and mark was internationally famous.  The defendants also allegedly maintained “primary control” over the use of the mark by setting up a detailed application and approval process for the app.  Thus, the court ruled that it was plausible to infer that the defendants knew or could have reasonably concluded that the plaintiffs would not have consented to license the “Chubby Checker” mark for use with the app.

The defendants fared better in their attempt to dismiss the state law claims.  The defendants invoked Section 230 of the Communications Decency Act, which immunizes internet service providers from tort liability based on content published by third parties.  The plaintiffs did not allege that the defendants created the app.  Instead, third parties created the app.  Since the defendants were internet service providers rather than content providers, Section 230 required dismissal of the state law claims.

LegalTXTS Lesson: This ruling could be a major setback for app store operators.  Essentially, it means an app store could be sued for contributory trademark infringement whenever one of the apps it sells is the subject of trademark litigation.  That might make some sense if the app store set up an approval process that includes review of the intellectual property rights used by apps (e.g., see how the app Pic Bubbler fared in the review process for the Apple App Store), but not if such review is missing from the app approval process (Google Play, for example, employs a minimal review process).  And you can bet the app store operator is a prime target for litigation if it’s a deep pocket.  Like in this case, who would you rather sue—HP, or the creator of The Chubby Checker, which apparently sold a mere 88 copies at 99 cents each?

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Online Dating Service Defeats Member’s Lawsuit For Negligence in Posting Member Profiles

Posted by on Jul 5, 2013 in Litigation, Miscellaneous

Court dismisses lawsuit against Match.com arising out of attack of one member by anotherBeckman v. Match.com, 2013 WL 2355512 (D. Nev. May 29, 2013)

A court threw out a Match.com subscriber’s lawsuit alleging that the online dating service was responsible for the injuries she sustained from being attacked by a man whom she met through the service.  Mary Kay Beckman met Wade Mitchell Ridley through Match.com and dated him briefly before ending the relationship.  After the break-up, Ridley sent Beckman threatening and harassing text messages.  Several months later, Ridley ambushed Beckman at her residence and repeatedly stabbed and kicked her.

Beckman filed a $10 million lawsuit against Match.com for (1) negligent misrepresentation; (2) deceptive trade practices; (3) negligent failure to warn; (4) negligence; and (5) negligent infliction of emotional distress.  The federal district court of Nevada granted Match.com’s motion to dismiss the entire lawsuit.

The court held that Section 230 of the Communications Decency Act immunized Match.com from the negligence and negligent infliction of emotional distress claims.  The court easily found that Match.com was an “interactive services provider” and not an “information content provider.”  The court also found that the theory behind the claims was exactly the reason that CDA immunity exists—to protect publishers against liability based on publication of online content generated by third parties.  Beckman alleged that Match.com was negligent in posting Ridley’s profile, which led to her to date Ridley and later be attacked by him.  Because the information in the profile originated from Ridley, CDA immunity protected Match.com from liability based on publication of the profile.

The court took a bit more effort to apply the CDA to Beckman’s claims for negligent failure to warn and negligent representation.  Although those claims tried to focus on Match.com’s alleged failure to warn Beckman instead of Ridley’s profile, the court concluded that the wrongful conduct alleged in the claims was still traceable to the publication of the profile.  There was nothing for Match.com to negligently misrepresent or negligently fail to warn about other than what a Match.com user might find on another user’s profile.  Since the negligent failure and negligent misrepresentation claims were just another way of holding Match.com liable for information originating with a third party, the CDA barred those claims.

The court also found reasons to dismiss the negligence-based claims other than the CDA.   The negligence claim failed because no special relationship exists between a provider of online dating services and its subscribers, and in the absence of a special relationship, Match.com owed no duty to its subscriber.  The emotional distress claim could not survive because, according to the court, posting an online dating profile did not rise to the level of “extreme and outrageous” conduct required to recover for emotional distress.  Finally, Beckman did not satisfy a heightened pleading standard that applied to the negligent misrepresentation claim.

The deceptive trade practices claim, which Beckman brought under the Federal Trade Commission Act, was dismissed because there is no private right of action to enforce the Act.  Beckman argued that the claim alleged that Match.com was negligence per se for violating the Act, but the court found that she did not plead such a claim.

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CDA Immunity and Search Results

Posted by on Apr 11, 2013 in Defamation

Google acted as a “publisher” for CDA purposes for including third-party content in search resultsMmubango v. Google, Inc., 2013 WL 664231 (E.D. Pa. Feb. 22, 2013)

Google successfully obtained dismissal of a defamation lawsuit filed by a person (Mmubango) who found derogatory comments about him posted online.  Mmubango discovered anonymous statements about himself on the “Wikiscams” website.  Mmubango asked Google to remove the statements from its search engine and to give him information about the poster of the comments.  Google refused.

Mmubango sued Google and others for defamation, and Google defended by moving to dismiss the claim based on Communications Decency Act (CDA) immunity.  The federal district court for the Eastern District of Pennsylvania agreed that Google met the requirements for CDA immunity.  First, Google is an interactive computer service provider.  Second, Google did not author the allegedly defamatory content, but instead, was provided with it by another information content provider (i.e., Wikiscams).  The defamation claim alleged that  Google was liable for storing and broadcasting the derogatory comments about Mmubango.  Third, Mmubango was seeking to treat Google as the publisher of third-party statements.  Deciding whether to provide access to third-party content or, alternatively, to delete the content is an act of publishing.  Under section 230 of the CDA, Google could not be held liable for defamation based on its decision to publish a third party’s statements.  The court dismissed Google from the case.

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Nevada Court Applies CDA Immunity To a Slew of State Tort Claims

Posted by on Feb 21, 2013 in First Amendment, Litigation

Court Finds That State Law Claims Against Online Forum Operator For Misappropriation, Theft, and Tortious Interference Hinge on “Publisher” or “Speaker” Status–Stevo Design, Inc. v. SBR Marketing Ltd., 2013 WL 308996 (D. Nev. Jan. 25, 2013)

A Nevada federal court held that Communications Decency Act (CDA) immunity barred state tort claims asserted in a lawsuit involving the dissemination of sports betting information.  The court’s holding was based on a liberal interpretation of what it means to be a “publisher” or “speaker” under section 230 of the CDA.

Stevo Design, Inc. (Stevo) sells licenses for access to its sports betting reports.  SBR operates a website with a discussion forum where users may post messages relating to sports betting and handicapping and to send messages to other users.  SBR encourages activity on its website by awarding loyalty points to users for doing different things on the website, including posting original content.  The loyalty points may be redeemed for credits at offshore gambling websites.  Stevo claimed that SBR and its users published Stevo’s protected works on the SBR website without obtaining a license.

In addition to bringing claims for copyright and trademark infringement, Stevo asserted a slew of state-law claims against SBR.  SBR asked the court to dismiss these state-law claims.  The court first determined if SBR qualified for CDA immunity.  The key question was whether SBR had a hand in developing the online content at issue.  If so, then SBR does not enjoy CDA immunity.

Relying on Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008), the court concluded that SBR did not “develop” the offending online content.  SBR encouraged its users to post original content.  It did not specifically encourage its users to publish information illegally on the website.  The fact that SBR users could freely contribute loyalty points to each other further evidenced the minimal role that SBR played in monitoring the content of forum posts.  That SBR “sporadically” tried to eliminate infringing content did not persuade the court that SBR was a developer of unlawful content—the CDA allows interactive computer services to perform some editing of user-generated content without becoming liable for all unlawful messages they do not edit or delete.

Having determined that SBR qualified for CDA immunity, the court next considered the impact of immunity on the state-law claims.  CDA immunity effectively precludes the operator of the interactive computer service from being considered the “publisher or speaker” of user-generated content.  As a result, only claims requiring the defendant to be the “publisher or speaker” are barred by CDA immunity.  Applying the meaning of “publisher or speaker” status liberally, the court concluded that CDA immunity barred each of the state-law claims:

Misappropriation of trade secrets: Misappropriation involves either “acquisition” or “disclosure” of a trade secret.  The court easily found that “disclosure” of trade secrets through user posts on the SBR website to require there to have been publishing or “speaking.  The court found “acquisition” to be a closer question, but the only kind of acquisition alleged in the complaint involved user posts on the SBR website, so the CDA barred that kind of misappropriation as well.

Misappropriation of licensable commercial property:  The court is not sure such a claim exists under Florida common law, but assuming it is a form of misappropriation, the plaintiff must have suffered competitive injury due to the defendant’s taking of information.  Stevo alleged that SBR injured it giving away its copyrighted information for free.  The only way SBR could have done that was by disclosing the information, i.e., it acted as a publisher or speaker.

Contributory misappropriation of licensable commercial property:  This claim merely required that SBR induced others to speak or publish.  The court refused to allow circumvention of CDA by alleging that the defendant induced publication or speech instead of itself doing the publishing or speaking.  Since SBR did not tell users what kind of information to include in their posts or encourage infringing content, it enjoyed immunity from this claim.

Civil theft:  Common law theft is defined as obtaining or using the property of another with intent to appropriate the property to his or her unauthorized use.  The only plausible way SBR procured or used Stevo’s property was through publication.  This claim is barred.

Tortious interference with contractual relations:  This claim requires interference with a business relationship.  The only interference that could be inferred from the complaint involved SBR’s publication of Stevo’s works.  As this claim depended on SBR’s status as the publisher, it is barred.

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Court Recognizes Facebook as an “Interactive Computer Service”

Posted by on Jan 2, 2013 in First Amendment, Social Media

Facebook entitled to Communications Decency Act (CDA) immunity as an “interactive computer service” Klayman v. Zuckerberg, 2012 WL 6725588 (D.D.C. Dec. 28, 2012)

This is one of the few (but growing) cases recognizing that Facebook qualifies as an “interactive computer service” under the Communications Decency Act (CDA).  In particular, the court finds that Facebook is an interactive computer service when acting as the publisher of a user-created Facebook page.

The plaintiff (Klayman), a Facebook user who is the chairman and general counsel of an organization called Freedom Watch, found a Facebook page titled “Third Palestinian Intifada.”  This Facebook page “called for an uprising beginning on May 15, 2011, after Muslim prayers [were] completed, announcing and threatening that ‘Judgment Day will be brought upon us only once Muslims have killed all Jews.”  This page caught the attention of the Public Diplomacy Minister of Israel, who wrote a letter to Facebook requesting that they take down this and related pages.  Klayman alleges that Facebook initially resisted removing the page, but eventually did so “begrudgingly.”  Klayman then filed an action against Facebook and its CEO, Mark Zuckerberg, in the District of Columbia, who removed the action to federal court.  The action asserted claims of negligence and assault against the defendants and sought, among other things, injunctive relief and punitive damages of over $1 billion.

Facebook argued that it had immunity under the CDA, and the court agreed.  First, the court found that Facebook meets the definition of an “interactive computer service provider” because its website gives its users the ability to create, upload, and share various types of information with multiple users.  Second, the court ruled that the allegations supporting the negligence and assault claims are based on Facebook’s status as a publisher or speaker.  Third, the court concluded that Facebook was not the “information content provider” because it did not contribute in any way to the contents of the Facebook page in question.

LegalTXTS Lesson:  The analysis of CDA immunity in this case is straightforward, but it’s noteworthy for concluding that Facebook is an “interactive service provider” for purposes of the CDA.  Not many have cases have addressed the issue.  This case joins  Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011), and Young v. Facebook, Inc., 20120 WL 42690304 (N.D. Cal. Oct. 25, 2010) (both cited in Klayman), as well as Gaston v. Facebook, Inc., 2012 WL 629868 (D. Or. Feb.2, 2012).  Note, though, that the status of a social media website status as an “interactive service provider” could hinge on the functionality of the site at issue (e.g., Facebook newsfeed vs. Facebook ads).

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