Friday, May 14, 2010

ReTweet ReLawsuit? Novins v. Cannon, Civ. No. 09-5354 (DNJ April 27, 2010)

Phishing Scams

I am grateful for the new Web 3.0 era of Facebook and Twitter. I am grateful because my email inbox is no longer filled with stupid crap that my friends were constantly forwarding. I think that's why so many old folk like Facebook and Twitter – it is the institutionalization of forwarding crap. All those old jokes and hoaxes and puppies needing adoption and cancer patients in England who wish to be sent letters – that has all migrated to Facebook posts and Tweets. And instead of getting forwarded half of a billion times, now it gets retweeted. And now my email inbox is merely filled with offers of money making opportunities.

Which brings us to today's question: What happens when I retweet (forward, repost, whatever) a post which is defamatory? Sec. 230, the Good Samaritan Act, protects internet hosts which host content written by someone else that is defamatory. The internet host does not become a publisher of the content just by merit of hosting it (much in the same way that the telephone network does not become a publisher by transmitting defamatory statements, or the postal service does not become a publisher merely by delivering a defamatory message). What happens when I receive a message, written by someone else, that might be defamatory (regardless of whether I know it or not), and I forward it, retweet it, or repost it. And what if, hypothetically speaking, my last name is Cannon. Today's story involves just such a saga.

As always, in our review, the names have been changed – largely 'cause we never like to hear about anyone named "Cannon" being a defendant – and the story has been reformatted to fit your screen.

The facts of this case are relatively simple. Defendant Gilligan allegedly wrote a post that allegedly stated that Plaintiff Thurston Howell hires drug addicts, his clients suffer identity thefts, and that Plaintiff is mentally ill. Gilligan sent this message to Mary Ann, Ginger, and Skipper, who forwarded on to three friends (and so on and so on). Thurston Howell took his coconut satellite phone that the Professor had made for him, and used it to immediately call his attorney who was on retainer. The attorney sued everyone in sight for publication of a defamatory message about Thurston. The cause of action for defamation falls not only on those who voice the defamatory utterances, but also those who might then dare to "publish" those utterances.

Before the District Court in New Jersey (yes, somehow although our castaways are stranded in an island in the south Pacific, their case is heard in Jersey – makes sense doesn’t it?) is a motion to dismiss by defendants. In a Rule 12(b)(6) Motion to Dismiss, defendants argue that taken the alleged facts in light most favorable to Plaintiff, Plaintiff still has stated nothing that adds up to a legal cause of action.

The Court made quick work of this. Normally Sec. 230 protection is discussed in the context of the protection of a web host, such as a review site where a third party has posted a negative comment about a plaintiff. This case does not involve a host but instead "users of an interactive service." As Sec. 230(c)(1) states, "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The Court affirms the well established principle that potential liability for third party content falls upon the third party, and not on others on the Internet.

Plaintiffs' allegations in this case—as against all of the defendants other than Gilligan —are very similar to the situation where a person operates a website that displays other people's comments. Defendants are alleged to have republished a defamatory web posting or email originally authored by Gilligan. As multiple courts have accepted, there is no relevant distinction between a user who knowingly allows content to be posted to a website he or she controls and a user who takes affirmative steps to republish another person's content; CDA immunity applies to both. As the Ninth Circuit aptly noted in Batzel v. Smith, "The scope of immunity cannot turn on whether the publisher approaches the selection process as one of inclusion or removal, as the difference is one of method or degree, not substance." Similarly, it does not matter how Defendants republished the alleged defamatory statements—whether by email, website post, or some other method. The point is that all the Defendants in this case—with the exception of Gilligan—acted as re-publishers of another person's information, and as such they are protected by the CDA.

Retweet, repost, forward – it's all the same. According to this Court, you are not a publisher and therefore not liable for third party content. The cause of action as against everyone – but Gilligan the author – gets the boot.

Let's see what today's lesson is: "Wheel of Morality, turn, turn, turn - Tell us what lesson we should learn." [Whirl, Click, Click, Clock]: Skipper's real name was Jonas Grumby! That might explain why they got ship wrecked.


Wednesday, May 12, 2010

[Event] Toward a Sustainable Spectrum Policy: Rethinking Federal Spectrum June 3

PK is announcing the following:

Toward a Sustainable Spectrum Policy: Rethinking Federal Spectrum
A conference hosted by Public Knowledge
(Click to RSVP)
June 3, 2010

The Washington Court Hotel on Capitol Hill
525 New Jersey Ave., NW
Washington DC, 20001

Panel 1: Federal Secondary Markets

Panelists will address the Public Knowledge white paper, "Federal Spectrum Secondary Markets: A Third Way Forward for Federal Spectrum Reform," released for the event.

Panel 2: Improving Federal Spectrum Management

This panel will focus on the second white paper released by Public Knowledge, also writted by Harold Feld and Gregory Rose: "Transparency, Efficiency, Access: How To Reform Federal Spectrum Management."


8:00 a.m. Coffee and Registration

8:45 a.m. Welcome (Gigi B. Sohn)

9:00 a.m. Overview Presentation: Averting The “Spectrum Crisis”

9:30 a.m. Panel 1: Federal Secondary Markets

Coleman Bazelon, Principal, The Brattle Group
Kathy Brown, Senior Vice President, Public Policy
Development, Verizon (invited)
Chris Duffus, Senior Vice President, Spectrum Bridge
Rick Whitt, Washington Telecom Counsel, Google (invited)
Jim Kohlenberger, Chief of Staff, Office of Science &

Technology Programs (invited)

Harold Feld. Legal Director, Public Knowledge
Gregory Rose, Principal, Econometric Consulting

10:45 a.m. Networking Break

11:00 a.m. Panel 2: Increasing Transparency and Efficiency for Federal Spectrum



Kathleen Ham, Vice President for Federal Regulatory

Affairs, T-Mobile
Janice Obuchowski, President, Freedom
Technologies (invited)
Jessica Rosenworcel, Senior Counsel, Senate Commerce
Committee (invited)
Karl Nebbia, Deputy Associate Administrator, NTIA

Harold Feld
Gregory Rose

12:15 p.m. Adjourn*

This is a widely attended event.

[EVENT] Future of Music Coalition: DC Policy Day 2010

New America and Future of Music are announcing:

"An event hosted by the New America Foundation

"This year has already seen a host of policy developments that will affect the entire music ecosystem - from the FCC’s authority to regulate the internet to international copyright concerns to the impact of health care reform on the music community.

Event Time and Location
Tuesday, May 25, 2010 - 11:00am - 6:00pm
New America Foundation
1899 L Street NW Suite 400
Washington, DC, 20036
"D.C. Policy Day 2010 will bring these issues into focus through informed presentations and panel discussions. A live webcast, available on this page, will bring the conversation to a global audience of artists, academics, industry professionals, journalists, music fans and more.

"Topics to be covered include the hotly debated Anti-Counterfeiting Trade Agreement (ACTA), the recent Live Nation/Ticketmaster merger, efforts to preserve an open internet, and the health insurance landscape for musicians following the passage of historic health care legislation. Policy Day 2010 will also examine how the creative industries are faring under current Washington leadership as we head into a new election cycle.

"Join us for this FREE event in Washington, DC hosted by the New America Foundation. Can’t make it to the District? Be sure to tune in to our interactive live webcast, which can be found on this page the day of the event.

"For more information please visit the Future of Music Coalition's website at

Tuesday, May 11, 2010

[EVENT] June 11 Online Censorship – Implications of Content Filtering for Content Access At Home and Abroad

Forum 1: Online Censorship – Implications of Content Filtering for Content Access At Home and Abroad

Date: Friday, June 11, 2010, 9:30am – 2:00pm.
Location: Dickstein Shapiro Conference Center
1825 Eye Street, Northwest, Washington D.C.

Description: "Internet content and applications providers face a large and growing number of challenges from governmental filtering and censorship in countries around the globe. Companies such as Google and Facebook have developed a range of responses to practices adopted by governments in China, Turkey, Australia, and elsewhere. The filtering practices themselves, and content providers’ responses to them, have domestic ramifications and relevance for policy debates in the U.S. about privacy, freedom of expression, and access to online content. In the first event of its 2010 forum series, MAP will lead a dialogue between experts on filtering and representatives from affected providers to discuss the consequences of control over access and speech in the domestic and international contexts."

Monday, May 10, 2010

[Event] Federal Communications Oversight and Authority: Who Is in Charge? May 11

NetCaucus AC Briefing on Net Neutrality (5-11-2010)

Federal Communications Oversight and Authority: Who Is in Charge?
Tuesday, May 11, 2010 - 12:00 am – 1:30 pm
Luncheon Panel Discussion U.S. Capitol Visitors Center, Room SVC 209/208

(Located on the North or right-hand side of the lower level)
Please RSVP to or via phone to 202-638-4370.

On Thursday, FCC Chairman Julius Genachowski and General Counsel Austin Schlick announced a new plan to ensure the FCC's oversight and regulatory authority over broadband Internet access services. This new proposal and its outlook will be discussed at length by our panelists on May 11. We look forward to seeing you there!


  • Markham Erickson, Holch & Erickson LLP and Executive Director, Open Internet Coalition [bio]
  • Jonathan E. Nuechterlein, Partner, WilmerHale [bio]
  • Gigi Sohn, Public Knowledge [bio]
  • Christopher Yoo, University of Pennsylvania Law School [bio]

What: Luncheon Panel Discussion (Lunch will be served; this is a widely attended event.)
Where: U.S. Capitol Visitors Center, Room SVC 209/208
When: Tuesday, May 11, 2010 12:00 pm – 1:30 pm
RSVP: Please send RSVPs to or via phone to 202-638-4370.

This widely attended educational briefing is hosted by the Congressional Internet Caucus Advisory Committee (ICAC), part of a 501 (c)(3) charitable organization. Congressional staff and members of the press welcome. The ICAC is a private sector organization comprised of public interest groups, trade associations, non-profits, and corporations. More information on the ICAC is available at

Advisory Committee to the Congressional Internet Caucus
1634 I Street NW - Washington, DC 20006
Find us on Facebook!


Co-hosted by the Berkman Center for Internet & Society at Harvard
University, and the Wharton School, University of Pennsylvania

Thursday, May 27, 2010, 9:00am-12:30pm
National Press Club -- 529 14th Street, NW, Washington DC

Attendance is free, but space is limited. To register, RSVP at the
link above, or email Amar Ashar with your name and affiliation.

* * *
On what basis, if any, does the FCC exercise jurisdiction over
broadband access in pursuit of national goals? FCC Chairman
Genachowski announced on May 6 that he intended to pursue a "Third
Way" between the current "ancillary authority" approach and full
imposition of Title II "telecommunications service" obligations on
Internet providers. Just what does this approach mean for the future
of broadband competition, Internet-based innovation, and the National
Broadband Plan? At this non-partisan event, legal experts and former
senior policy-makers will analyze how the U.S. arrived at this point,
and what steps the FCC and other branches of government should take

Session 1: The History and Context of the Debate
- Moderator Kevin Werbach (The Wharton School, Univ. of Pennsylvania)
- John Nakahata (Partner, Wiltshire & Grannis; former Chief of Staff, FCC)
- Jessica Rosenworcel (Sr. Counsel, Senate Commerce Committee)
- John Windhausen (Telopoly; former Sr. Counsel, Senate Commerce Committee)

Session 2: The Third Way - What Happens Next?
- Moderator Kevin Werbach (The Wharton School, Univ. of Pennsylvania)
- Yochai Benkler (Harvard Law School)
- Susan Crawford (Univ. of Michigan Law School)
- James Speta (Northwestern University Law School)

A complimentary continental breakfast will be served.

Please direct all questions to Amar Ashar at

Thursday, May 06, 2010

A Hack. A Scrape. A Crash. A Lawsuit. Snap-On Business Solutions, Inc., v O'Neil Associates, Inc., 5:09-CV-1547 (ND Ohio April 16, 2010)

In today's story, we hear a tale of a business deal gone sour, the alleged hacking and crashing of a computer system, data that are free except when it's not, and words that don’t always mean what they appear to mean. And while the characters in our story managed to have at least six disputes, we once again only focus on the federal causes of action, ignoring the other stuff.

The facts of this case involve an old favorite – a relationship breakup. And as always, in our story the names have been changed to protect the innocent (and to be totally Dragnet-like, I have acquired one of those really square haircuts). The story has been reformatted to fit your screen.

In this case, Third Party Thurston hired Plaintiff Penelope to make a database of Third Thurston's products for sale. Plaintiff's databases include pictures, links, and searchability. Plaintiff hosted the database on its servers and provided host network security. Third Thurston was responsible for authorization security (issuing and maintaining user names and passwords). The parties further agreed that all the work that went into creating the database was the property of Plaintiff – but that the data in the database constituted Third Thurston's trade secrets. Thurston provided Plaintiff with all the data and information about Thurston's products in order to make the database.

After a while Third Thurston decided he wanted to go with Defendant Daffy to make the database. When Thurston asked Plaintiff Penelope for the data, Plaintiff said, "Nope." Third Thurston then asked Defendant Daffy to "scrape" Plaintiff's database for the data. This scraping took place over several months and allegedly caused spikes in traffic loads on Plaintiff's servers. Plaintiff Penelope took offense at this scraping, blocked Defendant Daffy's IP Addresses, and sued Defendant Daffy (not Third Thurston). Defendant and Plaintiff are, of course, in the same line of business.

In this decision, the Court had before it a motion for Summary Judgment. In a motion for summary judgment, the moving party argues that no facts are in dispute and that the case can be resolved on paper, without a trial. If relevant facts are in dispute, then a motion for summary judgment fails. There are two federal causes of action: (1) Computer Fraud and Abuse Act and (2) Copyright Infringement.

Computer Fraud and Abuse Act: This is another example of the CFAA being used for a civil remedy – normally we hear about the CFAA in the context of criminal convictions. The question at hand is whether Defendant Daffy's access of Plaintiff Penelope's computers was authorized. This not a case, the Court points out, where a contract has been dissolved – and one party attempts access after termination of the contract having lost authorization. The contract between Plaintiff and Third Thurston was still in place, and Third Thurston was in charge of access authorization. Doesn’t that mean that Third Thurston gets to say who gets access and who does not? Third Thurston gave Defendant authorization to access the database. It seems like the access is authorized.

But the Court is not convinced that Third Thurston had the ability to authorized access to just anyone. There is some factual ambiguity as to the full scope of Thurston's authority. A part of the contract between the parties indicates that Thurston could only authorize access by Dealers, and the Dealers could use the database only "for its intended purpose" (how's that for vague!). On the one hand its plaintiff's servers, on the other hand Thurston got to hand out authorizations, but on the other hand it was just suppose to be "for the intended purpose." Where does that leave us, asks the Court. That creates a factual dispute (what is the scope of Thurston's authority) – and therefore the motion for summary judgment is denied.

Copyright Infringement: The second cause of action is for copyright infringement. This cause of action, as they say in legal jargon, "steps in the doo-doo." First, some basics. Ideas and facts are not copyrightable. It's original creative intellectual work that is copyrightable. The fact that the Earth is the center of the universal and that the Sun revolves around the Earth – is not copyrightable. Ptolemy's treaty explaining the whole Earth-is-the-center-of-the-universe thing is copyrightable. Now if I take a whole bunch of facts, and arrange them in a database – the database is not copyrightable. But if I add original structure or navigation or content to the database in order to improve the user experience, those creative enhancements are copyrightable. And it is on this legal boundary that a long list of legal battles have been pounded out – when does data which is not protected by copyright become protected by copyright when placed in a database?

Plaintiff argues that when defendant scraped the database, it copied the improvements and the creative aspects of Plaintiff's work. Defendant argues in its motion for summary judgment, "Nut uh. Plaintiff's 'database does not possess the minimal degree of creativity required for copyright protection because its structure is obvious.'" The Court points out that when Defendant scraped the database, it took the link structure and navigation information – along with a bunch of other stuff. Defendant reiterated its argument – "yeah, but you're Honor.The structure of the data, I mean it was obvious."

"Oh yeah??" exclaimed the Court (in A Few Brave Men like moment). "If the structure of the data in the database is obvious, how come you marketing pitch to Thurston was that that you would provide a better database by altering the arrangement of the data."

Whoops. Guess you cant argue that the arrangement of the data in the database you scraped was obvious, when your whole business plan rests on the fact that there are different ways of arranging the data – and your way is better. Score one for the Judge. Since Plaintiff's enhancements to the database could arguably be protected by copyright, defendant's motion for summary judgment once again fails.

Okay class, now here is your extra credit question. In Round Two of this case, assume ultimately hypothetically that it is found that the database is the property of Third Thurston, and that it was properly within the scope of Thurston's authority to grant access authorization to the database to Daffy. Plaintiff blocked Daffy's access by blocking Daffy's IP numbers. Does Thurston have a cause of action against Plaintiff for blocking an authorized user – and if so, what would that cause of action be?

Technology & Marketing Law Blog has an excellent review of this case, going over all of the causes of action. Technology & Marketing Law Blog make a number of astute observations – including the obvious – if you contract with someone to do data work for you, include a provision that says the data and database is yours - and if you say gimme gimme, you gettie gettie.