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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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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NLRB Judge Dismisses Charge Against Union For Failing to Disavow Threatening Comments on its Facebook Page

Posted by on Dec 5, 2012 in Employment and Labor

An NLRB administrative law judge ruled on November 28 that a union did not engage in unlawful labor practices by failing to disavow threatening comments posted on its Facebook page.  In addition to finding that the Facebook page was not an extension of the picket line, the judge concluded that, under Section 230 of the Communications Decency Act (CDA), the union was not responsible for the comments posted on the page.  The case is Amalgamated Transit Union, Local Union No. 1433 v. Weigand, 28-CB-78377 (NLRB Nov. 28, 2012).   (Read the decision here)

A union representing public bus drivers went on strike.  Several months earlier, the union set up a Facebook page, which the union’s vice-president administered.  The union accepted “friend requests” only from union members in good standing.  Friends of the union Facebook page could see messages posted on the union’s “wall” and “like” such posts.

Shortly before and during the strike, union members posted comments on the union’s Facebook page threatening retaliation against workers who crossed the picket line.  The comments threatened less favorable union representation for those crossing the line, more aggressive reporting of workplace violations against line-crossers, and even violence.  Several comments suggested that line-crossers would be physically beaten.  Another comment announced the location where employer’s replacement drivers were allegedly being housed, to which a rank-and-file member commented: “Can we bring the Molotov Cocktails this time?”  At least one other union member “liked” this comment.

The NLRB Acting General Counsel issued a complaint alleging that the union violated Section 8(b)(1) of the Act by failing to disavow the threatening comments.  Rather than alleging that the members posting comments acted as the union’s agents, the Acting General Counsel relied on the theory that a union is responsible for the coercive acts of its pickets on a picket line when the union fails to take corrective action or disavow the actions.  The Acting General Counsel argued that the union’s Facebook page is an “electronic extension” of the picket line.

The judge rejected the “electronic extension” theory, noting initially that the Facebook page existed well before the picket line.  Moreover, unlike a picket line, a Facebook page does not force union members to make a public and immediate decision to cross the picket line.   The Facebook page did not serve to communicate a message to the public, as it is private in nature.

In a somewhat surprising twist, the judge further ruled that the CDA immunized the union from liability for the comments on its Facebook page–an argument neither side had raised.  Often invoked in online defamation cases, Section 230(c)(1) of the  CDA states that  “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided.”  The judge regarded the union as merely the “provider” of the Facebook page, not the “publisher or speaker” of the comments posted on the page by its rank-and-file members.  Thus, the union itself could not be held liable for the comments posted on the page.

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CDA Immunity Does Not Make a Case “Federal”

Posted by on Oct 10, 2012 in Defamation

Reliance on Communications Decency Act immunity does not convert a lawsuit into a federal caseSulla v. Horowitz, Civ. No. 12-00449 (D. Haw. Oct. 4, 2012)

“You wanna make a federal case out of it?”  Well, maybe you do, but as the federal district court of Hawaii recently explained, citing a federal statute and arguing that the Internet is involved won’t cut it.

The plaintiff (Sulla) was counsel to a party that foreclosed on property owned by the  nonprofit corporation that one of the defendants (Horowitz) owned.  Sulla alleged that Horowitz and his co-defendant began publishing defamatory statements about Sulla over the Internet, including through a website with a domain name bearing his name.  Sulla sued Horowitz for defamation in state court, but the defendants removed the case to federal court, apparently based on diversity jurisdiction (i.e., all the plaintiffs are citizens of a different state than all the defendants).  Noting that all the parties might be citizens of Hawaii, the federal court issued an order to show cause why the action should not be sent back to state court.  Defendants’ briefing on the jurisdictional issue did not allay the court’s concerns.

The defendants argued that the court actually had federal question jurisdiction.  The basis for their argument?   Because the allegedly defamatory statements were published on the Internet, defendants argued, the court has exclusive federal jurisdiction over the case based on the Communications Decency Act (CDA).  The court disagreed, giving a quick lesson on how the CDA and federal question jurisdiction work.

First, “Section 230 [of the CDA] does not shield persons from liability for defamatory statements that they make via the internet.”  Second, whether CDA immunity applies is irrelevant to the analysis of federal jurisdiction.  The court cited the basic rule that federal question jurisdiction cannot arise out of a defense (as compared to a claim) based in federal law.  CDA immunity is a defense, so the possibility that the CDA might protect the defendants from liability for defamation did not convert the lawsuit into a “federal case.”

The court also found the defendants’ other arguments for federal jurisdiction unpersuasive and sent the case back to state court.

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