Tenth Circuit Affirms Liability for Seller of Private Telephone Records

By Tyler Lacey – Edited by Anthony Kammer
Federal Trade Commission v. Accusearch Inc., June 29, 2009, No. 08-8003
Slip Opinion

On June 29, 2009, the Tenth Circuit affirmed the Wyoming District Court, holding that Accursearch’s sale of private telephone records on its Abika.com website constituted an unfair practice in violation of the Federal Trade Commission Act (FTCA) and granted summary judgment for the Federal Trade Commission (FTC).

Dan Gooden of The Register provides an overview of the opinion. Eric Goldman criticizes the court’s opinion on his Technology & Marketing Law blog. Although Goldman doubts that “the literal holding of this case is all that troubling to most folks” he believes that the court “muddles the discussion” of each of the CDA immunity prongs.  In particular, Goldman believes that the court erred when it decided that “develop” was essentially synonymous with “publish” for the purposes of analyzing CDA immunity. Goldman describes the opinion as a “major carveback of [the CDA]‘s coverage” and predicts problems for online retailers that republish third-party content. (more…)

Ninth Circuit Holds Anti-Spyware Software Company is Protected by Communications Decency Act Sec. 230 Immunity

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.
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By Andrew Jacobs

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.

Minnesota Jury Awards Nearly $2 Million in RIAA File-Sharing Suit

By Anthony Kammer-Edited by Amanda Rice
RIAA/Capitol v. Thomas-Rasset

On Thursday, June 18, 2009, a federal jury in Minneapolis, MN returned a $1.92 million verdict against Jammie Thomas-Rasset for willfully infringing the copyrights of twenty four songs she had made available for download on Kazaa, a file-sharing program. The suit, brought by the Recording Industry Artists of America (“RIAA”), involved copyrights owned by subsidiaries of four major recording companies, Warner Music Group, Universal Music Group, EMI, and Sony Music Entertainment.

ArsTechnica provides a full account of the trial. IT Blogwatch provides a compilation of some of the blog coverage of this case. As reported by Wire, several copyright academics have suggested that the ‘make available’ standard was not met in this case. (more…)

California District Court Strikes at “Patent Trolling”

By Tyler Lacey – Edited by Amanda Rice
Diagnostic Systems Corp. v. Symantec Corp., June 5, 2009, No. SACV 06-1211 DOC (ANx) consolidated with No. SACV 07-960 DOC (ANx). Opinion

The United States District Court for the Central District of California granted in part defendant MicroStrategy’s motion requesting a more detailed statement of how its software products infringe on plaintiff Diagnostic Systems Corporation’s (“DSC”) patents, denying only MicroStrategy’s request for monetary sanctions.

The United States District Court for the Central District of California held that DSC must serve a supplemental answer to one of MicroStrategy’s interrogatories that includes more detailed Preliminary Infringement Contentions (“PICs”) within fifteen days. In so holding, the district court called DSC’s current PICs “vague” and “unacceptable,” especially given DSC’s status “as a company whose sole business is to enforce its patents.” MicroStrategy had given DSC’s software consultants copies of the allegedly infringing programs’ source code almost a year prior to the motion, but DSC had still failed “to provide PICs that explain how MicroStrategy’s source code infringes on the claims of DSC.” According to the court, the “bottom line” is that “after a plaintiff-patentee has had a reasonable opportunity to review the source code for the defendant’s accused software product, the patentee’s time for trolling the proverbial waters for a theory of infringement comes to an end.”

Peter Zurba provides an overview of the decision. (more…)