Monday, August 20, 2007

AT&T's mandatory arbitration...

... is also found unconscionable: Shroyer v. New Cingular Wireless Services.
Under this three-part inquiry, courts are required to determine: (1) whether the agreement is “ ‘a consumer contract of adhesion’ ” drafted by a party that has superior bargaining power;
(2) whether the agreement occurs “ ‘in a setting in which disputes between the contracting parties predictably involve small amounts of damages’ ”; and (3) whether “ ‘it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money.’ ”
Because all three parts of the Discover Bank test are satisfied, Cingular’s class arbitration waiver is both procedurally and substantively unconscionable, and cannot be enforced.


Take it or leave it...

... mandatory, binding arbitration / choice of law clause found unenforceable in consumer agreement: Oestreicher v. Alienware.

Tuesday, July 31, 2007

Is copyright infringement...

... covered by your software license agreement's consequential damages disclaimer? Piper v. SunGard.

The gist: to the extent you base your copyright claim on breach of contract, perhaps.

When even service level...

.... commitments are not enough: Silicon Knights v. Epic.

Monday, June 11, 2007

Church sues Sony over rights in church architecture...

... for Sony's 'sick' game: Church wants cash for 'sick' game

Entertainment giant Sony has been branded irresponsible for using a cathedral from a city plagued by gun crime in a violent video game.

The Church of England says the company did not seek permission to use the Manchester Cathedral in the game, and is demanding an apology and a large donation to be used in its work with young people.

I don't know anything about British law regarding copyright in architecture, but I doubt that, even if there were rights at one time, they continue today. Or, even if they do, that they would extend to something like this. Sounds like an interesting research project/law review article.

Another theory might be something under trademark rights. However, that also seems like a stretch.

Saturday, June 9, 2007

Linden Labs' Terms of Service "unconscionable"...

... in part because the Eastern District relied on EMPLOYMENT and FRANCHISEE CASES! I kid you not: read for yourself: Bragg v. Linden.

Linden Labs' the folks that bring you Second Life lost it's motion to compel arbitration because the court found the Terms of Service both procedurally and substantively unconscionable.

When discussing the TOS' procedural aspect, the court points to two California employment agreements about "take-it-or-leave-it" employment contracts. Anyone could figure out that the policies in those cases would be considerably different than the policies underlying a service agreement. This sounds like "clear error" and Linden Labs ought to win on appeal.

The court also stated that there are no market alternatives because no other online world offers "its participants property rights in virtual land." I'm not sure which way this argument should cut. Might the fact that they alone offer this feature be reason that the terms should be given more weight? To what other relevant market participant is the court comparing unconscionability's "shock the conscious?"

I will agree with the court with respect to one argument: PUT YOUR ARBITRATION CLAUSE IN A CONSPICUOUS PLACE. Linden Labs did not.

Thursday, June 7, 2007

Gateway sued in small claims...

... despite its arbitration clause probably because the consumer's faulty computer prevented him from seeing notice. Though, this 'Stubborn' PC owner
is going to have an uphill battle:
As Gateway tells it in court filings, the company replaced Sheehan's computer a few months after he first complained, and he kept both machines.

Monday, June 4, 2007

Missed this one: loses CAN-SPAM case...

... brought by MySpace, Inc. v. The, Inc..

Significantly, the court finds that:
  1. MySpace is an "internet service provider" within the meaning of CAN-SPAM, and therefore has a private cause of action;

  2. Messages sent through MySpace messaging system are "electronic mail"; and

  3. Setting up e-mails under "false pretenses" is sufficient under "false and misleading header information" requirement.

Hat tip: Eric Goldman.

Thursday, May 31, 2007

If you're selling games in New York...

... you risk being put in jail for life. Under a proposed New York law, it would be a felony to dissemintate violent and indecent video games to minors: 3 Games and You've Got 25 to Life

While the law does give some leeway for the sentencing court, it theoretically allows a judge to put someone away for life for selling a copy of, say, Gears of War to a 16 year old who looks 18. Yes, selling a game could come with a life sentence under the new law.

Hmmm... yikes!

WARF responds to stem cell reexam...

... by saying, paraphrasing, of course, "uh, you're wrong. Mouse stuff is not human stuff."

You can read the whole 113 page response here.

Wednesday, May 30, 2007

New bill = new standards for IT in healthcare?

I haven't reviewed the proposed rules, but it seems so: Federal bill would set healthcare IT standards | WTN:

Asserting that the U.S. Department of Health and Human Services has failed to advance President Bush's goal of widespread electronic medical record adoption, U.S. Rep. Bart Gordon, D-Tenn., has introduced a bill that would require a federal technology agency to accelerate the integration of healthcare information technology.

Thursday, May 24, 2007

CAN-SPAM has few private remedies...

... or at least that's what Western District of Washington seems to imply: Gordon v. Virtumundo, Inc..

The court held that even if a private entity can qualify as an "internet access service" (something the court calls "ambiguous), that entity needs to provide some evidence as to actual harm to "bandwidth, hardware, Internet connectivity, network integrity, overhead costs, fees, staffing, or equipment costs" or other "financial hardships" beyond mere inconvenience.

Hat tip spam notes.

Monday, May 21, 2007

Disclosing a public URL prompts non-lawyer nasty-gram...

... stating that a copy of a blog disclosing the URL has been turned over to the lawyers.

I can only imagine that the lawyer will probably not have a clue. Though, if he did, he'd probably give the client a really weird look.

Saturday, May 19, 2007

Can spyware makers sue...

... anti-spyware companies? Zango seems to think so.

Without having seen the complaint, the two "obvious" causes of action might be:

  • DMCA
  • Tortious Interference
Of course, the defenses are probably better.

Wednesday, May 16, 2007

Can structured text...

... preclude immunity under the Communications Decency Act? The Ninth Circuit (quickly becoming the CDA clearinghouse circuit) seems to think so.
As we previously explained, an entity cannot qualify for CDA immunity when it is “responsible, in whole or in part, for the creation or development of [the] information” at issue. 47 U.S.C. § 230(c), (f)(3); see also Batzel, 333 F.3d at 1031. Roommate is “responsible” for these questionnaires because it “creat[ed] or develop[ed]” the forms and answer choices. As a result, Roommate is a content provider of these questionnaires and does not qualify for CDA immunity for their publication.

In this case, the structured text was in the form of pre-defined content that a user selects in response to a questionnaire. created the questionnaire. The questionnaire contained questions about living preferences that referred to things like sex and sexual orientation. Arguably, those characteristics are not appropriate criteria under the Fair Housing Act (not an expert, nor do I really know anything about the law).

Too harsh? Maybe. Right decision? Probably.

Can you actually "delete" online predators?'s security officer seems to think so, MySpace won't turn over names of sex offenders:
"Everybody needs to get together and delete online predators," Nigam said, adding that MySpace supports state and federal legislation requiring sex offenders to register e-mail addresses. "The attorneys general's concerns and our concerns are exactly the same."

To be honest, I'm not sure what to make of's Electronic Communications Privacy Act argument. Seems a bit frivilous, perhaps I'll have to look at it a bit more, but it doesn't seem that they AG's are asking for intercepted information.

What is probably true, however, is that they don't have to turn over records without a subpoena, and they may be using this as a reason not to do so. I may have to look at Myspace's terms of use as well.

Did KSR open the gates for many high-profile...

... demands for a new trial? Microsoft seems to think so.

A "rainbow" of trouble...

... heh.

Man charged with stealing $250,000 worth of Skittles -

A man caught removing tires from a truck has been charged with stealing the tractor-trailer containing $250,000 worth of Skittles, police said.

Tuesday, May 15, 2007

Porn is fair use as Open Record...

... so says the Wisconsin Court of Appeals requiring that porn caught up in a school-teachers' firing is an open record:
We hold that a person aggrieved by a request made under the Open Records Law has standing to raise a challenge that the requested materials are not "records" because they are copyrighted. We further hold that the language of the statute, when viewed in light of the "fair use" exception to copyright infringement, applies so that the CD and the memo are "records" within the statutory definition of Wis. Stat. § 19.32(2)

Sunday, May 13, 2007

Malkin + EFF + UMG + YouTUBE = DMCA fight

What do you get when you mix one crazy rightwing pundit, an online rights organization, a music company and YouTube?  One gigantic copyright mess mess: YouTube Caught In Malkin, EFF, UMG Crossfire:
Between Malkin and UMG is a hard enough spot to be in, but add the EFF into the melee and you've got yourself a first class nightmare. The EFF called UMG's actions an "improper attempt to silence her online criticism of one of its artists."

Hat tip: The Trademark blog.

Friday, May 11, 2007

DMCA violation for NOT using a DRM system...

... huh? Apple, Microsoft threatened with possible digital copyright lawsuit -

MRT and Bluebeat said the failure to use an available copyright protection solution contravenes the Digital Millennium Copyright Act, which prohibits the manufacture of any product or technology designed to circumvent a technological measure that effectively controls access to a copyrighted work or protects the rights of copyright owners.

They said a failure to comply with the cease and desist order could result in in a federal court injunction and/or the imposition of statutory damages of 200-2,500 usd per product distributed or sold.

If there were ever a lawsuit that should see lawyers sanctioned, it would be this on.

Wednesday, May 9, 2007

Internet jurisidiction...

... in EBay cases, a primer.

Most people believe the law is pretty clear on Internet jurisdiction. That is simply not the case. The variety of Internet related disputes expands far faster than legislators could ever react. Judges are often left, therefore, applying bricks and motor jurisdictional principles to Internet disputes.

Monday, May 7, 2007

The problem with the RIAA and RICO...

... is that it's going to be hard to, among other things, show that a file-sharer has an expectation of privacy. So says, an Ars techica.

Tuesday, May 1, 2007

KSR fallout...

... in the Vonage case: Vonage asks for retrial:
Internet phone company Vonage Holdings Corp. (VG.N: Quote, Profile , Research) said on Tuesday it is seeking a retrial of a key patent infringement case against the company in light of a landmark patent ruling by the Supreme Court on Monday.

Google's Viacom response's...

... money quote:

Viacom's complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act. The DMCA balances the rights of copyright holders and the need to protect the internet as an important new form of
communication. By seeking to make carriers and hosting providers liable for internet
communications, Viacom's complaint threatens the way hundreds of millions of people
legitimately exchange information, news, entertainment, and political and artistic expression.
Google and YouTube respect the importance of intellectual property rights, and not only comply with their safe harbor obligations under the DMCA, but go well above and beyond what the law requires.

Friday, April 27, 2007

Words can be indecent...

.... so says a New York court in a case involving only the transcripts of ab internet chat.

Read the opinion here.

Thursday, April 26, 2007

Funniest legitimate Exhibit ever...

... filed by IBM in the IBM v. SCO case: "Selected Copyright Principles..

IBM uses it thusly:
Moreover, there is no question that preparing a defense to SCO’s allegations would require a line-by-line analysis of the code at issue, even if that code is not alleged to have been literally copied, as illustrated by the cases IBM provided to Judge Wells (and previously provided to this Court) (see Addendum A) and by SCO’s own cases.

Hattip: Groklaw.

Tuesday, April 24, 2007

Dick Butkus as...

... intellectual property licensing plaintiff?

I should see if I can dig up the complaint to see what it says about the license granted.

Word to the wise, if you're licensing something valuable, like your name or persona, run it by a lawyer first.

Monday, April 23, 2007

Open WiFi probably not a defense...

The dubious defense of an open wireless network as grounds to avoid criminal prosecution just got more dubious: Child porn case shows that an open WiFi network is no defense

The merits of leaving your wireless access point (WAP) open have been discussed and debated at length, especially when it comes to law enforcement. There is a growing belief that file sharers can protect themselves against lawsuits by keeping their wireless access points open. The problem is, it won't necessarily.

The point of clarification here is that: it's still probable cause to go to the place of the open connection.

Read the opinion.

Thursday, April 19, 2007

Use of print-out may be hearsay or lacking foundation...

.... Internet 'Wayback Machine' Printouts Held:
Printouts of Web pages purporting to indicate how a Web page appeared at a prior point in time, supplied by the Internet Archive's "Wayback Machine" service, are inadmissible without authenticating testimony from someone familiar with how the pages were created, the U.S. District Court for the Eastern District of New York held March 26 (Novak v., E.D.N.Y., No. 06-cv-1901, 3/26/07).

Good-faith in pay-per-click advertising...

... who'd have thunk it? Apparently the Southern District of New York.

Because this tactic would allow Findwhat to increase its profits solely at its discretion and with no benefit to Payday, it is
plausible that it could be found to “destroy[] or injur[e]” Payday’s rights under the contract. Dalton, 663 N.E.2d at 291. It is furthermore likely that a reasonable advertiser entering into such a contract would expect that, whatever the external risks of unproductive “clicks,” it would not be subjected to unbounded increases in its prices at the hands of its promisor or at its promisor’s direction.

Open records law requires...

... village to provide a company with the database of property assessments, not just a pdf, WIREdata Inc. v. Village of Sussex.

Friday, April 13, 2007

Duh... is generic trademark: opinion

Wednesday, April 11, 2007

Myth of the superhacker?

Paul Ohmwrites that too much law and policy is based on a fictious person that doesn't exist.
For example, law enforcement officials talk about the spread of zombie “botnets” to support broader computer crime laws. Privacy advocates fret about super-hackers who can steal millions of identities with a few keystrokes. Digital rights management opponents argue that DRM is inherently flawed, because some hacker will always find an exploit. (The DRM debate is unusual, because the power-user trope appears on both sides: DRM proponents argue that because they can never win the arms race against powerful users, they need laws like the DMCA.)

These stories could usefully contribute to these debates if they were cited for what they were: interesting anecdotes that open a window into the empirical realities of online conflict.

Tuesday, April 10, 2007

Terms of Use and copyright misuse...

Author of World of Warcraft tool, WoWGlider, sues for declaratory judgment that the development use of the software was not copyright infringement, and rather, that the terms of use constitutes copyright misuse:

Although defendants‟ EULA and TOU prohibit circumvention of the Warden software for interoperability purposes, such restrictions in the defendants‟ agreements constitute copyright misuse. And such restrictions are preempted by the interoperability exception in the DMCA. 17 U.S.C. § 1201(f). Thus, because the defendants‟ Warden software attempts to preclude third-parties from independently writing software that lawfully interacts with World of Warcraft, the defendants have misused their copyright.

Court pleading.

Myspace speech is free speech...

In a common sense ruling, a student's speech on a page is free speech: Court: MySpace postings are free speech -

A judge violated a juvenile's free-speech rights when he placed her on probation for posting an expletive-laden entry on MySpace criticizing a school principal, the Indiana Court of Appeals ruled.

The three-judge panel on Monday ordered the Putnam Circuit Court to set aside its penalty against the girl, referred to only as A.B. in court records.

Friday, April 6, 2007

UK bans XBOX 360 ad

Read about it here and see it here:

UW-Madison's retaliatory hacking...

... justified under the Fourth Amendment, or so says the 9th Circuit.


Battle of the Gassy: 'Fartman' Doll Loses on Appeal
In the competitive and lucrative market for farting dolls, Pull My Finger Fred has won out over Fartman, with a federal appeals court ruling that Fartman infringed Fred and that Fred's maker is entitled to attorney fees.

The U.S. Court of Appeals for the 7th Circuit affirmed a jury award of nearly $300,000 in damages and $575,000 attorney fees to JCW Investments Inc. in its copyright and trademark infringement suit against Novelty Inc.

Yet another, click-wrap agreement enforced.

Forum Selection, Other Click-Wrap Terms

So long as a forum selection clause in an online contract's terms is readily accessible and clear, requiring users to scroll down or print the contract to see it and other terms is acceptable, and will not absolve a party who clicks "I Agree" without taking the time to view the whole agreement, the U.S. District court for the Northern District of Pennsylvania held March 28 (Feldman v. Google Inc., N.D. Pa., No. 06-2540, 3/28/07).

Read the full opinion.

Conversion is a valid tort for electronic media

New York Expands Common Law Conversion

The common law tort of conversion applies to deletions and misappropriations of documents and data stored on electronic media, the New York Court of Appeals held March 22 (Thyroff v. Nationwide Mut. Ins. Co., N.Y., No. 41, 3/22/07).

Read the full opinion.

Monday, April 2, 2007

Higher price for music without DRM

So says EMI and Apple: BBC NEWS | Technology | EMI takes locks off music tracks

EMI said every song in its catalogue will be available in the "premium" format. It said the tracks without locks will cost more and be of higher quality than those it offers now.

Popular EMI artists include Lily Allen, Joss Stone, Robbie Williams, Coldplay and Corinne Bailey Rae.

Friday, March 30, 2007

Who's doing the spamming?

You might be surprised, So who sent you that spam? HP or Oracle? | The Register

When it comes to bot-infested PCs that spew spam, most of us assume the owners are newbie users too naive or careless to follow basic security measures. Think again. There's a good chance that the penis enlargement email that just landed in your inbox is from a network maintained by Oracle, Hewlett-Packard or some other Fortune 1000 company.

DMCA protects service providers...

... from third party intellectual property claims: Perfect 10 v. CCBill

Hat tip: » 9th Cir. Decides Perfect 10 v. CCBill

Thursday, March 29, 2007

TJX (TJ Maxx) security breach details...

Perhaps the largest security breach to date: TJX data breach: At 45.6M card numbers, it's the biggest ever

After more than two months of refusing to reveal the size and scope of its data breach, TJX Companies Inc. is finally offering more details about the extent of the compromise.

In filings with the U.S. Securities and Exchange Commission yesterday, the company said 45.6 million credit and debit card numbers were stolen from one of its systems over a period of more than 18 months by an unknown number of intruders. That number eclipses the 40 million records compromised in the mid-2005 breach at CardSystems Solutions and makes the TJX compromise the worst ever involving the loss of personal data.

Anti-plagiarism database, copyright violation?

Seems plausible. They have made slavish copies of works (probably protected by copyright) likely without a license to do so and is using them for commercial services.

The obvious problem: do the cheaters have standing to sue for other's copyrights>
McLean Students Sue Anti-Cheating Service -

Two McLean High School students have launched a court challenge against a California company hired by their school to catch cheaters, claiming the anti-plagiarism service violates copyright laws.

Wednesday, March 28, 2007

Dan Brown wins Da Vinci Code Appeal

Historians lose Da Vinci Code plagiarism appeal | Entertainment | Reuters :

Two historians have lost another legal battle in British courts over claims that U.S. author Dan Brown plagiarized their ideas for his blockbuster novel "The Da Vinci Code."

GPL v. 3

I haven't yet reviewed, but GPLv3 was recently released.

DMCA violation for posting NFL copyright notice?

Fighting fire with fire, law professor and EFF attorney Wendy Seltzer is still fighting a DMCA takedown notice for posting the NFL's copyright notice on YouTube. NFL Clip Down Again:
In apparent defiance of my counter-notification, the NFL sent YouTube another takedown notice, which YouTube followed with another takedown a few days ago, giving notice to me yesterday. Now when I sent my counter-notification to the first NFL notice, on February 14, YouTube forwarded it on to the NFL per the DMCA's specification. Since my counter-notification included a description of the clip, "an educational excerpt featuring the NFL's overreaching copyright warning aired during the Super Bowl," it put the NFL on clear notice of my fair use claim.

Finding Peer-to-peer infringers unreliable?

So says this attorney in response to the RIAA Dear RIAA:

I know of no facts on which a good faith finding of probable cause by either your clients or your law firm could be based to support a claim for relief against Mr. Merchant.

It is well documented that your clients' reliance on MediaSecurity (an admitted "non-expert;" UMG v. Lidor, East Dist NY No. 1:05-cv-01095-DGT-RML) and its overall method of identifying P2P copyright infringers is wholly unreliable and inadequate. See, e.g., February 23, 2007, deposition of the RIAA's expert. See also expert witness statement of Prof. Pouwelse and Dr. Sips: filename=foundation_upcnederland_witnessdeclaration and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA's "driftnet" litigation strategy:

Tuesday, March 27, 2007

Taste infringement.

Heh: - Frivolous Litigation: How Coke 'Punk'd' Its Lawyers:
"You don't have valid claim!" Johnson shouts at one point.

Monday, March 26, 2007

Remote DVR is a direct infringement...

... or at least so says federal judge Denny Chin in Twentieth Century Fox v. Cablevision Systems:

The RS-DVR is clearly a service, and I hold that, in providing this service, it is Cablevision that does the copying.

User-generated advertising, "uncharted legal waters"

Everyone likes, YouTube (well, not Viacom), but is user generated content really a good advertising strategy? Consumer-Created Ads Cause Grief for Companies

Money quotes:

"The idea of doing that is fraught with all sorts of risks that aren't worth the business benefit," said Douglas Wood, a New York-based attorney who is a co-chairman for the advertising, technology and media law group at Reed Smith. "If clients listen, they won't do it."
"You need to step back and say: What negative impact could this have on my brand?"

Saturday, March 24, 2007

Washington joins Streamlined Sales Tax

Wash. Governor Signs Internet Tax Bill -

Washington will join 21 other states that have passed legislation to become members of the Streamlined Sales Tax Project.


The state Department of Revenue predicts that by joining the program,
Washington will initially see an additional $35 million to $40 million
in sales taxes from out-of-state companies that sell products to
Washington residents.

Friday, March 23, 2007

Spiders and terms of use

While the plaintiff in this case seems a little over the edge, the Wayback Machine v. Shell case presents some interesting legal questions: to what extent can a spider be bound to the terms of use of a website.

I think that it's fairly safe to say that most think terms of use are probably enforceable. However, it is possible that a spider can be an agent?

Hat tip Eric Goldman.


Judge puts one more nail into the Child Online Protection Act, - Internet Porn Law Ruled Unconstitutional.

National Security Letters

In an unusual anonymous letter to the editor, "My National Security Letter Gag Order," the president of a small internet service provider said:

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law.

Google wins; Kinderstart sanctioned

In a long, well-reasoned opinion, Google wins it's motion to dismiss against Kinderstart.

After having a really bad day, Gregory Yu, counsel for Kinderstart, is then sanctioned subject to Google's motion for attorney's fees.

Hat tip, Eric Goldman: KinderStart v. Google Dismissed--With Sanctions Against KinderStart's Counsel

Oracle sues SAP

Oracle sues SAP for "corporate theft on a grand scale": complaint.

CAN-SPAM and vicarious liability

An advertiser can be vicariously liable for another party's CAN-SPAM violations