Nokia Sues Apple for Patent Infringement Related to iPhone

On October 22, Nokia filed a suit against Apple in Delaware federal court, alleging that the iPhone infringes patents held by Nokia. The New York Times reports that the specific patents deal with the GSM and UMTS wireless standards utilized by the iPhone for voice and data communication, both of which were developed in part by Nokia. The Wall Street Journal notes that the suit might be a strategic response to the iPhone’s increasing momentum in Europe and Asia. Nokia could gain a two-percent royalty on each iPhone sold if the suit succeeds.

Tennessee Couple Is Entitled to Unmask Anonymous Blogger

On October 8, a Tennessee state court held in Swartz v. Does that a couple is entitled to know the identity of the individual who posted critical statements about them in an online blog. Ars Technica notes that the blogger’s claim to protection under Section 230 of the Communications Decency Act likely failed because the blog induced readers to spy on the Swartzes and report back on the blog. The Citizen Media Law Project points out that the legal standard used by the judge in this case was “highly protective of anonymous online speech,” but that the Swartzes provided “sufficient evidence in support of their claims of wrongdoing to outweigh the anonymous blogger’s right to anonymity.”

Charges against Craigslist for their “Adult Services” section dismissed by Illinois District Court
By Ye (Helen) He – Edited by Eric Engle

Dart v. Craigslist, Inc., No. 09 C 1385 (N.D. Ill. Oct. 20, 2009)
Opinion

The United States District Court for the Northern District of Illinois held, on Craigslist’s motion for judgment on the pleadings, that Craigslist is not liable for the content posted by its viewers. The court cited Section 230(c) of the Communications Decency Act, concluding that Craigslist, as an Internet classified ads service provider, is immune to civil liability for third party content. The court found Craigslist analogous to an ISP or phone service provider and thus not liable for users’ content and conduct, as opposed to, as plaintiff contended, a newspaper or magazine which may be held liable for its ads.

Bloomberg.com and Eric Goldman’s Technology & Marketing Law Blog summarize the case.

Plaintiff Tomas Dart, the Sheriff of Cook County Illinois, alleges that Craigslist is facilitating prostitution through their erotic (now “adult”) services section, and thus constitutes a public nuisance. Plaintiff sought money damages and to enjoin Craigslist from hosting its adult services section (Compl. P 1; id. at P 27.) Dart claims that Craigslist violated Illinois statute by arranging “meetings of persons for purposes of prostitution and directs them to a place for the purpose of prostitution.” As evidence, Dart cites “The Polaris Project,” an advocacy group against human trafficking, stating that “Craigslist is the single largest source for prostitution, including child exploitation, in the country.”

Craigslist argued that U.S.C. Section 230(c) absolves them of any liability. According to Section 230(c), “No 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.” Section 230(e) of the further states that, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Craigslist also points out that before posting ads on its website, users must first agree to its Terms of Use. Furthermore, prior to entering the adult services section, users must agree to flag any content that violates Craigslist’s Terms of Use.

In addressing Dart’s allegations, the court reasoned that even if Craigslist were found to violate the Illinois statute, Section 230(e) of the act would control. Furthermore, the court found Dart’s interpretation of “arrange” and “direct” to “strain the ordinary meaning of the terms.” The court reasoned that since it was the users who choose to post such content, even against Craigslist’s express Terms of Use, Craigslist in no way induced anyone to create, post or search for illegal content.

The court’s holding is wise and conservative; to rule otherwise would blatantly disregard the plain meaning of the Communications Decency Act, and invite a slew of litigation. The court does note, however, that the act does not protect online content hosts from all civil liability, warning that Craigslist could be held liable for its own content or if its system were truly designed to encourage or cause the unlawful behavior. Given Craigslist’s existing precautions, it seems this message is directed at the public rather that to Craigslist itself.

By Debbie Rosenbaum – Edited By Amanda Rice
Julie Doe II et al. v. MySpace Inc., Case No. B205643, (Cal. Ct. App. June 30, 2009)
Opinion

On June 30, the Second District Court of Appeals in Los Angeles affirmed the judgment of the lower court and held that online social networks and other websites cannot be held liable for a sexual assault on a minor that stems from an online meeting. The court rejected claims made by the parents of four girls who were between thirteen and fifteen years old when they created MySpace profiles. The court followed Fifth Circuit precedent, Doe I v. Myspace, which JOLT Digest’s Anna Volftsun previously summarized in May 2008.

The Court of Appeals held that girls who are sexually assaulted by men they first contact on MySpace cannot seek damages from the social-networking website, which is protected from liability by Section 230 of the Communications Decency Act. “[T]hey want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type of activity-to restrict or make available certain material-is expressly covered by section 230,” wrote the court.

Ars Technica provides an overview of the case. CNET and Reuters also summarize the main points of the case. Eric Goldman offers a nice in-depth analysis of the case and emphasizes the defense’s use of Roomates.com precedent.

The plaintiffs, four underage girls (referred to as Julie Does) and their parents, sued MySpace for gross negligence and strict product liability after they were sexually assaulted by older men whom they met through the website. The plaintiffs alleged that MySpace had failed to employ adequate age verification measures or keep profiles on a “private” setting.

Despite the unfortunate circumstances in which these events took place, the court found that MySpace was protected from liability by Section 230 of the Communications Decency Act. Section 230 is the same law that has protected Craigslist from being held responsible for discriminatory housing ads and other websites from being held liable for defamatory content created by third parties. The court’s opinion distinguishes the Roommates.com case (hosted by EFF) (which held that requiring users to answer questions that encouraged violation of the Fair Housing Act was not protected by Section 230) by noting that the questions that MySpace asks its users are neither required nor themselves illegal.

This decision was welcomed by free speech advocates, and is particularly salient in light of the Lori Drew reversal, covered by Flash Digest here, which limited a plaintiff’s right to seek relief for real life harm caused from online actions.

By Dmitriy Tishyevich-Edited by Anthony Kammer
Zango, Inc. v. Kaspersky Lab, Inc., June 25, 2009, No. 07-35800.
Slip Opinion

On June 25, the Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment for Kaspersky Lab, which distributes software that filters and blocks malicious programs.  The Ninth Circuit held that Kaspersky qualified for civil liability immunity under the Communications Decency Act Sec. 230(c)(2)(B) and rejected Zango’s argument that Sec. 230 immunity was limited only to Internet content providers.

The E-Commerce and Tech Law Blog summarizes the opinion. Eric Goldman provides another summary, agreeing with the outcome, but pointing out some questions the decision left open.

Kaspersky Internet Security is anti-virus software that warns users if the program they are about to download has been classified as malware and gives the user the option of allowing or rejecting the download.  Zango created several downloadable programs, which provided free access to its catalog of online videos, games, music, and tools if the customers agreed to have online ads displayed as they browsed the Internet.  Kaspersky classified Zango’s programs as adware, a type of malware that monitors the users’ Internet usage and causes pop-up ads to appear while the user is online.  In response, Zango filed suit against Kaspersky claiming that its software interfered with customers’ use of Zango’s programs, links, and promotional materials.

The Ninth Circuit affirmed the district court’s holding and held that Kaspersky was entitled to immunity under the Communications Decency Act Sec. 230(c)(2)(B), which grants immunity from civil liability to interactive computer service providers for screening and blocking of offensive material.  The court rejected Zango’s argument that Congress intended to grant immunity under the Communications Decency Act only to Internet content providers.  It determined that Kaspersky met the statute’s definition of an interactive computer service provider, as it made available anti-malware software which enabled users to filter, screen, and allow or disallow particular content.

The court also noted that though the legislative history indicated that Internet content providers were to be granted immunity, this was but one of the purposes of Sec. 230(c), and the plain language of the statute and other legislative history showed that the CDA was also meant to immunize providers of interactive computer services that make filtering software available.  The court further determined that extending immunity to providers of malware filtering software was consistent with Congress’ goals for immunity as articulated in Sec. 230, noting that extending immunity would encourage development of technologies that enable users to exercise control over the information they receive, and would remove disincentives for development of filtering software that permits parents to restrict their children’s access to inappropriate online materials.

Judge Fisher concurred that the CDA provided immunity to Kaspersky as an access software provider.  He noted, however, that a broad grant of immunity could be of concern if providers of blocking software could unilaterally block dissemination of material, because a provider might abuse the immunity by blocking competitors’ content without the user’s knowledge.  He suggested further that unless Sec. 230(c)(2)(B) imposed some implicit good faith requirement, immunity may stretch to include conduct that Congress likely did not intend to protect.

The Sunbelt Blog suggests that Judge Fisher’s concerns are misplaced because given the competitiveness of the anti-malware software market, vendors cannot unilaterally block content that users actually want installed on their computers.

FTC Ready to Regulate Blogs

On June 21, The Washington Post reported that revised FTC advertising guidelines, set to be approved late this summer, will explicitly include blogs within their scope. The guidelines make clear that bloggers must disclose any compensation they receive for product endorsements and that they may be held liable for false claims made in those endorsements. According to the Post, while some bloggers worry about potential chilling effects, others believe that the guidelines will lead to more trust within the blogosphere and increased advertiser comfort with blogs.

City Removes Requirement that Job Applicants Disclose Social Networking Passwords

On June 22, the City Commission of Bozeman, Montana, rescinded a requirement that city job applicants disclose their usernames and passwords for websites such as Facebook, YouTube, and MySpace, the Billings Gazette reports. The requirement was part of Bozeman’s background check consent and release form. The commission’s decision came less than a week after a Montana television station discovered and reported on the policy, which quickly provoked additional coverage and criticism from tech media and legal blogs.

Google’s Italian Court Date Set Back

The AP reports that on June 23, the Italian trial of four Google executives for defamation and privacy law violations was postponed until September due to the absence of an interpreter. Italian prosecutors brought the case seeking to hold Google liable for allowing a video of an autistic child being beaten by his classmates to be posted on YouTube. Though an E.U. law similar to the U.S.’s 47. U.S.C. §230 immunizes internet service providers from liability based on third-party content, the suit was brought under an Italian penal statute which holds content providers responsible for user-generated material, according to the Proskauer Privacy Law Blog. Alessandro del Ninno, an expert on Internet law, says the case is the first of its kind in Europe.

By Ezra Pinsky – Edited by Dmitriy Tishyevich
Barnes v. Yahoo!, Inc., May 7, 2009, No. 05-36189.
Slip Opinion

On May 7th, the Court of Appeals for the Ninth Circuit affirmed in part and reversed in part a district court’s 12(b)(6) dismissal of a complaint which had sought to impose negligence liability on Yahoo for hosting a fraudulent personals profile created by the plaintiff’s ex-boyfriend, despite plaintiff’s requests that it be removed and Yahoo’s assurances that it would be.  The district court dismissed the claim, holding that Section 230(c)(1) of the Communications Decency Act immunized Yahoo from liability.  Writing for the Court of Appeals, Judge O’Scannlain affirmed in part, upholding the district court’s finding that Section 230(c)(1) protects Yahoo from negligence liability for third-party tortious material hosted on its website.  However, the court reversed in part and remanded, holding that Section 230(c)(1) does not protect Yahoo from a promissory estoppel claim if they promised to remove such content but failed to follow through.

Marc Randazza of the Citizen Media Law Project and Daniel Solove of Concurring Opinions provide overviews of the decision.  Eric Goldman of the Technology and Marketing Law Blog criticizes the opinion for being “filled with gratuitous and dangerous dicta, sloppy reasoning and sloppy language.”

The district court held that Barnes, whose ex-boyfriend posted fraudulent and harmful personal profiles of her on a website operated by Yahoo, could not maintain a negligence claim against the company.  In so doing, it relied on Section 230(c)(1), which, under certain circumstances, makes Internet service providers immune from liability for material that is published on their website by third parties by not treating the providers as publishers or speakers of that information.  Goldman summarized the district court’s decision.

The Ninth Circuit affirmed in part by recognizing that despite Barnes’ attempt to bypass Section 230(c)(1) by suing Yahoo for negligence rather than defamation, Yahoo would nevertheless be immune from liability if Barnes’ cause of action sought to treat the company as a “publisher or speaker” of harmful material provided by a third party.  The court concluded that Barnes’ tort claim would treat Yahoo as a publisher, noting that “removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.” The negligence claim was therefore barred by Section 230.

However, the court also noted that Barnes’ complaint cited “Yahoo’s ‘promise’ to remove the indecent profiles and her reliance thereon to her detriment,” which it construed as a promissory estoppel claim, a form of liability that lies in breach of contract rather than negligence.  The court determined that “Barnes does not seek to hold Yahoo liable as a publisher or speaker of third party content, but rather as the counter-party to a contract, as a promisor who has breached.”  The potential liability would be based on Yahoo’s manifested intention to remove the content, which it ultimately did not do.  The court held that if Yahoo had made a promise with the constructive intent that it be enforceable, it implicitly agreed to waive its Section 230(c)(1) immunity upon breach of that promise.  The court remanded the case to determine if Yahoo’s assurance of action in fact qualified as such a promise.

Daniel Solove points out that this decision may have negative consequences by deterring Internet service providers from taking a firm stand on removing tortious material from their website.  As the Ninth Circuit noted, “this makes it easy for Yahoo to avoid liability: it need only disclaim any intention to be bound.”  Solove observes that consequently, instead of making a strong effort or providing any assurance that may be construed as a promise, providers will “hide under Section 230’s umbrella by weakening promises to take down harmful content.” 

Eric Goldman suggests that this promissory estoppel decision should not substantially change Section 230 jurisprudence because promissory estoppel claims are very difficult to win.  Additionally, websites will still be able to avoid liability by being careful with their words.  However, he points out that the ability of plaintiffs to raise this claim will still have negative consequences, since it will allow them to “get further into the litigation process (to the summary judgment stage or even to trial) and substantially raise the costs of a 230 defense.”

In a recent update, Goldman also notes that Yahoo, supported by an amicus brief from a coalition of public interest groups, has petitioned for a rehearing en banc.  Yahoo is seeking rehearing of the panel opinion’s holding that Sec. 230 provides an affirmative defense that must be asserted by responsive pleading, and may not justify dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Citizen Media Law Project analyzes the legal merits of the petition and of the Ninth Circuits ruling. CMLP also hosts the petition here.

Google Sued for Use of Trademarked Terms in Adwords Program

A class action was filed against Google on May 11, 2009 in federal court in Texas challenging its use of trademarked terms in its adwords program. The New York Times covered the case and surrounding issues. Ars Technica analyzes Google’s new AdWords policy.

ACLU Challenges Constitutionality of Gene Patents

The ACLU filed suit in the Southern District of New York challenging the patenting of genes and genetic tests as unconstitutional. The New York Times reported on the suit and the ACLU’s plaintiff. Patently-O provides further analysis and links to the ACLU blog and the complaint.

Independent Newspapers, Inc. v. Brodie
Court of Appeals of Maryland, February 27, 2009, No. 63
Opinion

On February 27th, the Court of Appeals of Maryland reversed a lower court’s order compelling discovery of the identities of five anonymous Internet forum posters in a defamation action. The court had granted certiorari on its own initiative.  While the court’s holding required it to consider only a pleading issue, it went on to offer guidance to lower courts in future cases involving anonymous Internet speakers in a defamation action.  In doing so, the court adopted the standard from Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

Nixon Peabody’s Digital Media/Internet Law Blog offers analysis of the opinion, concluding that the Dendrite test is “emerging as the leading test across jurisdictions in anonymous Internet speaker cases.”  Ars Technica compares this case to other unsuccessful attempts to uncover the identities of anonymous Internet posters. The Washington Post quotes Paul Alan Levy, a lawyer for the consumer advocacy group that argued the case for Independent Newspapers, who characterizes the opinion as reaffirming the First Amendment right to speak anonymously.

Citizens for Greater Centreville links to the oral arguments and appellate brief in the case.

In 2006, Zebulon J. Brodie filed a complaint in the Circuit Court for Queen Anee’s County, alleging defamation and conspiracy to defame, against Independent Newspapers, Inc. and three John Doe defendants known only by their forum usernames.  The allegedly defamatory statements were made on Independent Newspapers’s Internet discussion forum.  Independent Newspapers was dismissed from the case as it was shielded from liability by section 230 of the Communications Decency Act.  However, in the same order, the judge compelled Independent Newspapers to comply with Brodie’s subpoena to reveal identifying information regarding five Does who had posted on its forum.

In an opinion by Judge Battaglia, the Court of Appeals reversed because of a pleading problem: the plaintiff had not pleaded a valid defamation claim against any of the five Does subject to the subpoena.  The court held that the trial judge abused his discretion when he denied Independent Newspapers’s motion for a protective order/motion to quash.

The court stated that it granted certiorari in the case not merely to sort out the record, but to offer guidance to trial courts facing the issue of whether to require the disclosure of the identity of an anonymous Internet speaker when it is sought in defamation actions.  The Court of Appeals adopted the standard set forth in Dendrite International, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).  This five-part standard requires: (1) that the plaintiff undertake efforts to provide notice to the anonymous posters that they are subject to a subpoena; (2) that the court provide posters a reasonable opportunity to oppose the subpoena; (3) that the plaintiff identify the exact statements alleged actionable; (4) a determination by the court on whether the plaintiff sets forth a prima facie defamation action against the posters; and (5) that the court balance the anonymous posters’ First Amendment rights against the strength of the plaintiff’s prima facie defamation case and the necessity of disclosing the posters’ identities.

In a concurring opinion, Judge Adkins questioned the necessity of the fifth element of the Dendrite standard, arguing that the substantive law of defamation already strikes the proper balance between the competing interests in anonymous speech and reputation.  The judge was concerned that the majority’s test would “invite[] the lower courts to apply, on an ad hoc basis, a ’superlaw’ of Internet defamation that [could] trump the well-established defamation law” and might become an obstacle to pursuit of legitimate causes of actions.

The Court of Appeals’s adoption of the Dendrite standard may make it harder for plaintiffs defamed by anonymous Internet speech to proceed under Maryland law.  Because section 230 of the Communications Decency Act generally shields Internet service providers from defamation arising from defamatory content posted by users, plaintiffs can usually bring defamation claims only against the speakers themselves.  These direct claims will have to survive the five elements of the Dendrite standard in order to identify the anonymous speakers.

Even after a court allows a plaintiff to subpoena identifying information regarding anonymous Internet speakers, he or she may still face an uphill battle.  A recent example involves two female Yale Law School students who were subjected to graphic insults and threats on AutoAdmit, an online discussion forum about law school admission.  Eight months after the court granted the plaintiffs’ subpoena, they were able to identify only several of thirty-nine anonymous online commentators.

Related Reading: Ken S. Meyers, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 Harv. J.L. & Tech. 163 (2006).

Doe v. MySpace, Inc.
Fifth Circuit, May 16, 2008, No. 07-50345
Slip Opinion

On May 16, 2008, the Fifth Circuit unanimously upheld the Western District of Texas, finding Section 230(c)(1) of the Communications Decency Act (“CDA 230”) barred a parent’s claims for negligence and gross negligence against the social networking site, MySpace.com. The suit was brought on behalf of Doe’s 13-year-old daughter, who misrepresented her age to create a profile on MySpace, and was subsequently contacted and allegedly sexually assaulted by a 19-year-old MySpace user.

Julie Doe, a 13-year-old minor, represented her age as 18 when creating a MySpace profile. MySpace defaults all 14-year-old and 15-year-old profiles to “private,” which restricts profile access to confirmed “friends” only. But as a result of Doe’s misrepresentation, her profile was made “public” and viewable by the all other MySpace users, including 19-year-old Pete Solis. Solis contacted Doe, the two exchanged phone numbers, and after communicating several times off-line, arranged a meeting at which Solis allegedly sexually assaulted Doe.

Eric Goldman of the Technology and Marketing Law Blog sees this as a victory for proponents of strong CDA 230 immunity. He notes that several cases leading up to the decision, including Fair Housing Council of San Fernando Valley v. Roommates.com, Mazur v. eBay, and Doe v. FriendFinder, Inc., had evinced a trend towards loosening the immunity provided to internet providers under the statute. While Goldman hopes the MySpace decision will discourage plaintiffs from continuing to bring claims against websites for failing to protect or police its users, he remains “flummoxed by the number of cases [he is] seeing involving teens making poor (and, in some cases, life-altering) decisions using MySpace.”

Sam Bayard of the Citizen Media Law Project is more ambivalent about the outcome. While he believes that the CDA 230 is an important protection for internet service providers, he thinks the decision may have gone too far. He paraphrases John Palfrey of the Berkman Center for Internet and Society, who noted in an internal email:

“MySpace is a powerful corporate intermediary that has broad ability to control the networked public space it makes available to minors and adults alike, and it doesn’t necessarily serve any of the congressional objectives behind CDA.”

Full Text of the Communications Decency Act of 1996 at the US Government Printing Office.

Suing on behalf of herself and her daughter, Doe’s mother originally filed claims for fraud, negligent misrepresentation, negligence and gross negligence against MySpace and its parent company, News Corporation, in Texas state court, alleging that MySpace failed to implement adequate safety measures to prevent communications between minors and sexual predators on its website. The Does then withdrew the suit and refiled the case in the Southern District of New York, in which they asserted the same claims against MySpace. The case was transferred to the Western District of Texas, where the Does voluntarily withdrew the claims for fraud and negligent misrepresentation. The district court held that the negligence and gross negligence claims were barred by CDA 230. The Fifth Circuit Court of Appeals upheld the lower court, reaffirming that despite artful pleading, internet service providers will not be held liable for content generated by its users.

CDA 230(c)(1), also known as the “Good Samaritan” provision, provides immunity to providers and users of an “interactive computer service” from civil liability arising out of information that is provided by third-party content providers. Invoking the doctrine of premises liability, the Does argued that their claims were not barred by CDA 230 because they were not suing MySpace in its capacity as a “publisher,” but rather for failing to take adequate steps to protect minors on its site. The Fifth Circuit upheld the district court’s finding that these negligence claims were simply a “disingenuous” attempt to circumvent the CDA 230. Judge Clement, writing for the court, affirmed the district court’s finding that the negligence claims were based on disapproval of how MySpace screened and edited user content, which were essentially directed against MySpace in its publishing capacity and thus barred by CDA 230(c)(1). The Court declined to address the Does’ second argument that MySpace was partially responsible for the content of the site (an argument that proved successful in Fair Housing Council of San Fernando Valley v. Roommates.com) because the issue was not raised prior to the appeal.

Relevant Court Documents (Hosted by Citizen Media Law Project)

Texas State Court Complaint (06-19-2006)
New York State Court Complaint (09-25-2006)
Order on Motion to Dismiss – Western District of Texas (02-13-2007)

Related Links

The Technology & Marketing Law Blog tracks the story in MySpace.com Sued for $30 Million, Doe v. MySpace.com Continued, MySpace Suit for Liability for Sexual Assault Dismissed.

THELEN excerpts Judge Easterbrook, summing up CDA 230

Fenwick hosts Websites’ CDA Immunity: An Ever-Expanding Universe?
1 Privacy & Data Protection Legal Rep., No. 11, at 1 (ALM LJN Dec. 2006)