Monthly Archives: September 2012

The Week In Defamation: September 24 – September 29

Wow! The globe was abloom with defamation — online and off — this week. From the UN to the Ukraine, slander and libel lawsuits, litigation and regulation took center legal stage.

Defamation Around The World This Week

The United Nations revived the age-old debate about blasphemy (religious defamation) laws. Talk centered around how the proliferation of both the Internet and mobile devices makes it unreasonable for officials to expect countries with free speech traditions to take action against distasteful media that finds itself online.

Palestinian President Mahmoud Abbas’ son filed a defamation lawsuit against Jonathan Schanzer, a reporter for the Foreign Policy Group, a division of the Washington Post Company. He’s suing for 5 counts of libel related to a tobacco-related article Schanzer wrote that insinuated Abbas was exploiting his dad’s connections for personal profit.

Newspapers over in the Ukraine took a page from the SOPA-protest movement this week. In protest of their country’s attempts to re-criminalize libel, midweek, many of the print media outlets published a front page that only read “Our front page is empty because they want to silence us and take away our right to know the truth.” And like officials in the U.S. caved after the Internet blackout day, so did the officials in the Ukraine.

And in the Philippines, all bytes broke loose this week when the President signed an aggressive cybercrime bill into law. The new regulation effectively makes Internet sex websites illegal, and it also crimilizes online libel. In protest, “Anonymous Philippines” trashed a few government sites.

Personal and Small Business Defamation: Yelp! And The NY Daily News Make News

A dentist in Portland, Oregon lost a Yelp!-focused online defamation lawsuit. When asked how he felt about the verdict, the doctor blamed Section 230 of the Communications Decency Act.

A man in New York is suing the New York Daily News for publishing his picture as the feature imagine about an allegedly shifty dentist who was brought up on fraud charges. Sounds to me like a clear case of false light.

Celebrity Defamation News: Mayweather, Spears, Travolta and the ICP

In celebrity defamation news, Floyd Mayweather and Manny Pacquiao settled their defamation squabble, which clears the way for them to get in the ring. Both are handling their own legal costs and its over as quickly as it began. Ms. Britney Spears also found herself dealing with some defamation issues this week. A judge ruled that the X-Factor judge will not have to testify in a defamation lawsuit against she and her mother that was filed by Sam Lufti in 2009. Why? Brit’s still under a conservatorship.

John Travolta, playing the Anti-SLAPP card, won a libel face off with Robert Randolf, author of the salacious tell-all “You’ll Never Spa In This Town Again.”  The Insane Clown Posse thrilled the hearts of ‘los and ‘lettes nationwide by filing a lawsuit against the FBI for listing “jugaloos” in the 2011 National Gang Threat Assessment watch list.

Politicians & Defamation: From Italy To Iowa, Elected Officials Were Knee Deep In Slander and Libel

In local government defamation news, an outgoing city manager in Port Richie, Florida filed a defamation lawsuit against a state representative over comments made about her severance package. Deep in the heart of Texas, the mayor of Irving is being sued by a community activist because she allegedly called him a “whore” on a local television news interview. Interestingly enough, the plaintiff in the case isn’t asking for any money, just civility moving forward from the Mayor. Gotta love them Texans.

A New York judge dismissed a $60 million lawsuit against disgraced ex-governor, Elliot Spitzer, that centered around an article on, in 2010, entitled, “They Still Don’t Get It.” Meanwhile, in Iowa, Congressman Leonard Boswell filed a defamation lawsuit against former challenger, Ed Fallon. Fallon, an occupy movement activist and daily Internet talk show host, allegedly accused Boswell of trying to bribe him not to run. Boswell says Fallon’s claims are hogwash.

Mother Pens Cyberbullying Memoir

Cyberbullying is most often associated with children. But many adults also suffer online harassment. Lesli Catsouras, 46, is one such adult, and she’s sharing her harrowing story in a new memoir entitled, “Forever Exposed.” A deeply personal tale, Catsouras’ book is about the cyberbullying she and her family experienced after her 18 year old daughter was killed in a car crash.

It all started on Halloween afternoon of 2006. After having lunch with her parents, Nikki grabbed the keys to her father’s porche, the one she was not supposed to drive, and escaped out the garage. Panicked, Nikki’s mother immediately called her father, who tried to warn the police, but it was too late.

Nikki lost her life after crashing into an unmanned toll booth. As you can imagine, it was an incredibly difficult time for the Catsouras family. All they wanted to do is grieve in peace and try to piece their life back together. But the opposite ended up happening.

Due to a leak by the California Highway Patrol, the pictures of Nikki’s death leaked onto the Internet. Within days, the Catsouras family was inundated with taunting emails. Many even included pictures of Nikki’s crash. When word got out that there were traces of cocaine in Nikki’s system at the time of the crash, things got even worse. She was labeled a spoiled brat who deserved what she got, and the family had to endure the nightmare – both online and off.

The cyberbullying was relentless. The disparaging messages came in day after day, week after week, month after month. And yes, those months turned into years. Can you imagine years of persistent cyberbullying? It got so bad that the youngest Catsouras, who is now 13, is still not allowed on the Internet.

The Catsouras’ bid to rid the Web of the gruesome photos has been long and challenging. According to Lesli, her family has spent several millions trying to remove the photos from the Internet…and years later, some images still linger in the ether.

If you or someone close to you is being cyberbullied, there are legal avenues available to fight back. You can file a defamation lawsuit or get a temporary restraining order, for example. Also, tons of online reputation services help those who are in need of “cleaning up” any unwanted information that has managed to find its way onto the Internet.

Cyberbullying is a terrible thing to suffer through. But don’t give up. There is help out there, the first step to rectifying the situation is picking up the phone or sending that initial email to someone who is experienced with the legalities of cyberbullying.

Legal Advice For Tech Startups: A Quick Guide

startup lawyer
Getting ready to launch a startup? Before you click the mouse, make sure all your legal ducks are in a row.

You’re starting a startup and need to know the applicable laws. Well, you’re in luck, because this is a quick legal guide to launching a tech startup. While it’s always a good idea to speak with a startup law attorney before launching, this advice for tech startups should set you down the right legal path.

First Things First: Pick A Home-base For Your Business

Not all state startup laws are created equal. Some states have affiliate-friendly statutes; others favor e-commerce outfits. Finding the best jurisdiction for your company is the first step in establishing a legal base for your operation. In addition to industry considerations, remember to review the partnership laws in your state of choice. Some states have laws that prevent a co-founder from being let go without being bought out, others don’t. Some have tax structures that favor small tech startups, some don’t. So when you’re debating the decision, take some time to really think about your business; think worst case scenarios and then figure out which state is best for you. If you’re not sure where to begin with something like that, a good startup lawyer can help.

Legal Advice for Tech Startups Point #1: Register That Intellectual Property Properly

These days, intellectual property is as valuable to a startup as a bottomless venture fund would be. OK, that’s an exaggeration, but it can’t be stressed enough that IP is the equivalent to digital gold. Think about how much it would sting if you lost your branding edge due to an ill-filed copyright or trademark registration.

Another bit of startup advice: in the interest of clean records, make sure the intellectual property is registered to the company, not an individual. In the event of a partner split, the last thing you need is to be haggling over who owns the IP. It could get nasty.

Legal Advice for Tech Startups Point #2: Work Out a Partnership Agreement and a Pre-Nup

If you are embarking down startup path with others, make sure a partnership “pre-nup” is signed. Starting a company can be stressful, just as stressful as an unsuccessful marriage. Putting an exit agreement on paper while things are good is a great idea. Moreover, it allows you to see how you and your partners deal with unpleasant necessities – and it may just save you from getting into the wrong relationship with the right people.

Legal Advice for Tech Startups Point #3: Domestic and International Online Privacy Laws

While the Internet industry currently has fewer regulations than many others, there are still a number to which all companies must adhere. If you’re planning on doing business overseas – or targeting clients in the EU as well as North America – then there are even more laws you must heed. Here’s a quick list of a few:

Children’s Online Privacy Protection Act

The Children’s Online Privacy Protection Act is the only Internet privacy bill that has not been shot down in some way by the Supreme Court of the United States. And it looks like it’s about to be updated again – in a not so great way. If you are running a site or app that could potentially be attractive to kids – even if it’s not your intent to target kids – you’d better familiarize yourself with COPPA regulations. If not, crippling fines could play a major role in your not so distant future.

Gramm-Leach Bliley Financial Modernization Act

The mighty GLB – otherwise known as the Gramm-Leach Bliley Financial Modernization Act – is a wide sweeping bill that affected many industries. Tech startups need to be aware of the bill’s very specific financial online privacy standards. It’s a nuanced piece of legislation that must be understood, or, again, you could find yourself beat before you warm up.

United Kingdom Cookie Law

The Internet knows very few borders. That’s why any startup in North America must consider Internet law happenings across the pond. Currently, the new UK cookie law is the main regulation any new online venture should understand and incorporate into their platform. If not, you could face some very time-consuming European litigation, and possibly a hefty fine.

Legal Advice for Tech Startups Point #4: The Dot Com Disclosures

If you market on the Web, you must follow guidelines in the Dot Com Disclosure — the online marketing bible put out by the Federal Trade Commission. It covers everything from the proper use of testimonials to disclosure statements to allowable online marketing language. Get a copy, read it, know it — doing so will save you a lot of grief in the long run.

Legal Advice for Tech Startups Point #5: CYB and Invest In Proper Website Policies

Every type of startup business – whether it be a groupon-type platform, a crowdsourcing project, an app or a social network – has its own set of provisions that need to be touched upon in a site’s terms of service, privacy policy and disclaimer. While some template website policies are perfectly fine for your average run of the mill website, a legitimate startup could find themselves in some very deep legal hot water by using one. Besides, there are inexpensive legal services out there that custom draft terms, so you won’t have to pay a huge amount for the protection.

The Kelly / Warner Law Firm was established to cater to the needs of online businesses and Internet entrepreneurs. We know the industry and the regulations that govern it; we understand the difference between blackhat and whitehat; we spend our days lawyering and our evening devouring anything tech-related. If you’re a startup looking for legal counsel, contact us today. We’re confident you’ll be impressed with our efficiency…and Internet law geek quotient.

Affiliate Marketing Legal Alert: Senator Unveils New Digital Marketing Bill

Internet Marketing Law
Sen. Schumer is proposing a new law that could affect affiliate marketers.

All affiliate marketers should take a moment to read Senator Chuck Schumer’s new Internet law proposal that seeks to raise fines on any entity that places calls to any number on the National Do Not Call Registry.

An aggressive piece of affiliate marketing law legislation, the bill seeks to raise fines and re-classify violations as felonies.

“Congress has enacted the laws to fight back against [robo advertising], but the companies are using new tricks, and now we must enact stiffer penalties to make sure the laws have teeth so the regulators can bring the rogue firms to heel,” Schumer explained to CBS news.

How The Proposed Act Could Affect Affiliate Marketers

Specifically, if the new bill is passed, anybody who places illegal robo-calls or digital messages will be fined $20,000 per call. Moreover, it would redefine DNCR violations as a felony, as opposed to a misdemeanor. And perhaps most alarmingly, Schumer’s proposal includes provisions for up to 10 years in jail for egregious violations. (The jails are already overcrowded. Is it really the smartest move to start throwing non-violent offenders into prison over something as non-threatening as unsolicited marketing?)

When being interviewed about his new bill proposal, Sen. Schumer opined that the punitive damages do little in the way of mitigating violations. Since the current codified DNCR fines are so low, he reasoned that businesses risk getting caught and rationalize the cost by figuring that the profit earned from breaking the law would outweigh any violation fines that could be levied.

Are Text Messages Subject To Do Not Call Rules?

Since the National Do Not Call Registry first popped onto the scene, there has been some confusion as to whether or not messages and texts to mobile devices were actionable under DNCR regulations. While there are a few exceptions, these days, the general rule of thumb is that any communication to any number – whether to a cell phone or land-line – is subject to do no call legislation.

Other Affiliate Marketing Laws & Regulations

In addition to Do Not Call legislation, every affiliate marketer, in order to stay on the right side of the law, should also familiarize themselves with the Dot Com Disclosures and FTC case law. Internet marketers who market children’s products must pay heed to the Children’s Online Privacy Protection Act; those who deal in finance services should familiarize themselves with the privacy provisions outlined in the Gramm Leech Bliley Act. And lastly, every affiliate marketer should make sure that they have the proper terms, privacy policies and disclaimers on their websites.

Get In Touch With An Affiliate Marketing Lawyer

The Kelly / Warner Law Firm was established to serve the needs of affiliate marketers and people who do business on the Web. Unlike other law firms, we know the digital world intimately. Not only are we AV-rated attorneys, but we’re also affiliate marketers. In fact, we’re such geeks that we even created our own legal app. If you work on the Web and are in need of an attorney who can address your legal needs quickly, efficiently and at the right price, give us a shout.

Click here to read more about Aaron Kelly – Internet lawyer and enthusiast.

New Internet Law: Facebook Freedom of Speech Schools

An aggressive new Internet law was introduced in North Carolina, making it a criminal offense for a student to release statements online with the intention of intimidating or tormenting school faculty.

In Minnesota, a U.S. District Court maintained that compelling students to hand over access to their social media accounts is a violation of their rights under the First and Fourth Amendments. The case involves a 12-yer-old girl who posted one comment about a school employee on Facebook at home, and followed it up with another. School officials promptly questioned the student, which resulted in disciplinary actions. She also had to provide access to her email accounts, which they searched.

Based on Tinker v. Des Moines and other precedents, the court maintained that school authorities could not punish statements made away from school, which are guaranteed by the First Amendment, unless they are genuine threats or intended to affect the school environment. They must also be so inflammatory that they pose a significant safety risk, or some other significant disruption, at the school.

Attorneys for the school indicated that the protection of out-of-school statements was unclear when the alleged violation took place. However, that was dismissed by the court, which stated that a general rule that schools had no right to regulate inappropriate speech that takes place out of school was well-established long ago.

In addition, Bradley Shear, an attorney and an authority on privacy laws related to social media, states that any public school requiring students to provide their social media user names, or allow access to digital content protected by their password, or who install third-party software, regardless of the motive, are clearly violating the First and Fourth Amendments.

In view of this, our courts may soon face more challenging cases related to off-campus speech. The main hurdle appears to be defining the “true threat” standard for online interactions.

Six Strike Illegal Downloading Warning System

illegal downloading
Six Strike Piracy Alert System Is In Effect In The US

Update Feb 2013: Welp, it’s a go! The six strike illegal downloading system went into effect at the end of February 2013.

Update Nov 2012: Due to issues associated with Hurricane Sandy, implementation of the “six strike” anti-piracy program, which is intended to thwart illegal downloading, is delayed until 2013.

European countries love illegal downloading laws. Most use a three-strike system, meaning users get two piracy warnings before being slapped with sanctions. In Europe, if a person is caught in the act after two warnings, the punishment is usually suspension of Internet service for up to a year.

Since the US justice system is based on the ‘innocent until proven guilty’ premise, laws like the EU’s three-strike method are considered unconstitutional by many. The argument being that people are stripped of rights without first being found guilty of an actual crime.

But the times, they are a’changing.

Several American ISPs announced that they will employ measures that help copyright holders hang on to their intellectual property. Similar to their European cousins, the Americans are going with a ‘six strike’ policy. This means American Internet users will be given five progressively severe warnings before suffering more serious consequences. These measures are strictly optional for Internet providers, but it is estimated that around seventy-five percent of American citizens will be affected by the new rules.

How Will The Six Strike Illegal Downloading Warning System Work?

Most people know the consequences for pirating content on the Internet. The warning at the beginning of movies makes clear the punishment: Up to Ten Years in “The Clink” and Hundreds of Thousands in Fines. Unfortunately for copyright holders, the strike system has done little to stymie the flow of piracy in Europe.

It isn’t yet known what will happen to a person after their fifth ‘strike’ for downloading pirated content. In fact, there isn’t even a standardized approach for the five warnings before the dooms-day sixth strike.

The Center for Copyright Information (CCI), an organization created by the movie and recording industries, is working in conjunction with the nation’s ISPs. They haven’t, however, been able to provide many details on the potential consequences.

The Executive Director of the CCI said the five warnings leading up to the sixth strike would be educational tools. Meaning someone surfing the web may have to read a warning about possible consequences or watch a video related to online piracy, before continuing Internet use. It’s not yet known what punishments a sixth strike would trigger, but many ISPs are hesitant to cut off a person’s service — let’s face it, who wants to lose customers?

Is Illegal Downloading Really That Big Of A Problem?

The new measures will do little to thwart online piracy. Heck, it’s barely made a difference in France and other EU nations. Regardless, the important question to keep asking should be: is piracy really that big of a problem? Sure, the entertainment industry wants their potential lost revenue, but is it really potential lost revenue or just a 21st century way of entertainment consumption – screen first and buy what you like? And if so, is the latter a successful business model? If you believe this piracy math, then your answer is probably “yes, piracy is good for the entertainment economy.”

Nevertheless, according to the law, illegal downloading is against the law. There ain’t no getting around that solid fact. So, who knows, maybe this new system won’t do much to stop the hard-core pirates, but it could dissuade a curious teen from getting into the habit in the first place. Only time and test lawsuits will tell.

Need a lawyer to consult on a piracy related legal matter? Get in touch with Kelly / Warner Law. We’re and Internet law firm that focuses on all legal things associated with doing businesses and living on the Web. Our rates are extremely reasonable and our success rate impressive. Get in touch.

Meet The Pirates Of Germany

At turns, they’ve been called the “protest party of the moment” and members have been known to make questionable haberdashery choices. For all intent and purpose they’re like a political band of gypisies – independent and prone to eccentricities. Nope, I’m not talking about the Tea Party, but instead the Pirates of Germany.

A political party numbering approximately 30,000,  the Pirates of Germany hold 20 seats in one state and 45 seats across the country. While the popular history of the party usually begins in 2009, the seeds of their union actually date back to around 2006. It was that year that the Mannheim court ruled that citizens are responsible for their WiFi routers and all the traffic that passed through it. When the decision hit, a group of Internet activists in Germany started conversing on a, what could be described as, a fan-boy/fan-girl wiki for the Swedish Pirate Party. The administrator of the wiki was “Mor Roguen” or “Dark Knight” and on September 1, 2006, the group moved their meeting offline and held their first in-person gathering. What emerged from that gathering was the beginnings of a new German political party called “The Pirates.”

In 2009 members mobilized to protest a national telecommunications law that was enacted to combat online pornography, but the Pirates argued that the law could be easily used against anyone. In 2010 the Federal Court of Justice ruled that citizens could be fined one-hundred euros or more for an open WiFi connection – and the Pirates grew in numbers.

The German Pirates are not the only online copyright “outlaws” who’ve made tremendous gains thanks to government interference. Notorious BitTorrent search engine, The Pirate Bay, saw their traffic more than double after it was shut down by officials. Plus, the Swedish Pirate Party also saw their numbers increase significantly after the highly publicized event.

So what do the Pirates in Germany stand for? Well, their manifesto is a little bit hyper-intelligent, sci-fi idealism, coupled with a healthy dose of ultra-socialistic principals (another point that separates the Pirates from Tea Partiers). Their main goal seems to be compiling “all human knowledge and culture and to store it for the present and future.” They also firmly believe that “the digital revolution brings humanity the opportunity of advancing democracy.” Which, hey, are noble ideals. However, the Pirates also have a more radical agenda than just advancing knowledge and culture via technology, they also believe that every individual should be guaranteed a regular check from the government to pursue learning and culture – every person.  As X put it, it could be argued that technology is to The Pirates as industry was to the Communists.

Germany is not the only country with an active Pirate party. As mentioned earlier, the Swiss pioneered the movement, and today, Pirates are a registered party in nearly 15 countries; representatives hold seats in Spain, Switzerland and Czech Republic. In 2009, the Swiss even elected a Pirate Party member to the European Union Parliament.

And yep, in case you were wondering, there are Pirate movements in Canada, Mexico and the United States.

An Interview With ICANN Brass: The Latest On The gTLD Rollout

The Wall Street Journal had a sit down with Akram Atallah, former CEO and current COO of the Internet Corporation for Assigned Names and Numbers (ICANN). They’re the folks who handle the global administration of domains. Generally speaking, you could say they’re the entity that makes sure each unique Web property has its own online address.The interview focused primarily on the opening of the generic Top Level Domain (gTLD) system, which will incorporate a slew of new top level domain options (i.e., .secure, .shopping, etc.) on the World Wide Web. While Atallah played his cards close to his chest, there are a few points worth noting.

When asked about the 1,930 gTLD applications filed this summer, in addition to the amount of objections and comments submitted, Atallah stuck to his talking points and was quick to point out that no objections have been filed to date. He went on to explain the difference between objections and comments; the former being a fee process that could result in the halting of an application, the later costs nothing and does not interfere with the application process. Mr. Atallah was also sure to remind that the commenting period has been extended until September 26, 2012.

ICANN’s Digital archery competition was also a topic of conversation. The COO explained that they initiated the program as a way to help determine the order of gTLD application processing, since there wasn’t a clear, fair way to establish who gets their domain implemented first, second, third, et cetera. Atallah went on to say that the program didn’t work, for the simple fact that participants hated it. As such, ICANN scraped the plan.

The interviewer touched on the controversies surrounding the registration of potential new genric Top Level Domains like .gay. Many religious groups – and free speech watchdogs alike – have been submitting dueling comments to express their opposing views as to whether or not certain gTLDs should be allowed. Sleathly, Mr. Atallah pointed out that ICANN does not have a directive to deal with such disputes, that’s the purpose of the partnerships with International Chamber of Commerce, WIPO and International Center for Dispute Resolution, Atallah explained. He went on to reaffirm that ICANN, for all intent and purpose, is simply an administrative body that carries out the regulations that the community decides on.

In closing, Atlallah was asked about ICANN’s plans to transfer functions to the International Telecommunications Union (ITU). He answered the question by first pointing out how well the ICANN system currently works, evidenced by how quickly and seamlessly the Web has grown in the past two decades. He then went on to indicate that ICANN was not invited to the annual ITU convention in Dubai this year, and that his team had yet to see any formal proposals. Atallah did say, however, that his organization is willing to consider ideas.

The new CEO is of ICANN is Fadi Chehade, who will most likely be overseeing the bulk of the gTLD process.

Are you in need of a lawyer to help with the generic Top Level Domain process? If yes, contact us today.

Han Han Makes Headlines With Another Internet Law Claim

Chinese Blogger Han Han
Popular Chinese Blogger, Han Han, is involved in another Internet law case. Image Source:

Well what do we have here!? Looks like everybody’s favorite race car driver/poet/ Internet-sensation is once again making international Internet law headlines. That’s right ladies and gentlemen, we’ve got some more news from the Han Han files.

Don’t remember Han Han? He’s the insanely popular Chinese blogger who recently made news after filing a very high profile defamation lawsuit against his arch nemesis, Fang Zhouzi. Now, Han Han is once again making headlines as part of an author cabal who were awarded damages for online copyright violations. Specifically, the authors were upset about Wenku, an online literary database which has been posting works that can be downloaded for free.

Even though he was awarded moola, Han Han may not be rejoicing, as the prolific netizens didn’t get a fraction of what he asked for in the lawsuit.

You see, Han is part of an author association called the Copyright Protection Alliance. Recently, an attorney for the members filed a copyright infringement lawsuit against Baidu, a popular search engine in China. Out of the claims brought via the CPA filing, 7 of the suits were dropped and 7 claimants were awarded damages. Han was one of the lucky seven – he got about 40,000 yuen.

But as I mentioned above, Han Han had asked for much more than a mesley 40, 000 yuen. Homeboy  wanted 760,000 (about $120,635). But perhaps most importantly, our man Han formally requested that the Baidu executives issue a prominent apology to Han Han and co. on their homepage. But the judge in the case could not be convinced that an apology was in order.

In true media-aware style, Wang Guohua, Han’s lawyer, announced that he and his client are considering an appeal in the copyright infringement lawsuit against Baidu.

Now, I couldn’t pass up this opportunity to get my Han Han on and promote myself. So, if you need to consult with an online copyright infringement lawyer, give us a call. We’re Internet law attorneys who know a whole lot about online intellectual property law.

Copyright Trolls Lose Another Tool From Their Arsenal

copyright trolls
A California judge ruled that having an unsecured WiFi connection does not equal negligence in illegal downloading lawsuits.

A California Judge recently set a precedent that shields Internet subscribers from being sued due to their “negligence” in locking down their Wi-Fi security.

In the case of AF Holdings vs. Josh Hatfield and John Doe, AF Holdings sued Josh Hatfield for failing to secure his WiFi connection, which they said was negligence on his part and led to piracy of some of their adult movie content.

Hatfield filed a motion to dismiss the charges, arguing there was no way the adult entertainment company could say he had an obligation to secure his Wi-Fi Internet connection to protect their company from piracy. Judge Phyllis Hamilton agreed with Hatfield.

According to the court documents, “AF Holdings argues that it seeks to hold Hatfield liable for ‘negligent maintenance of his residential network,’ which it asserts allowed a third-party to commit large-scale infringement of AF Holdings’ copyrighted works.

“Specifically, AF Holdings alleges in the complaint that Hatfield owed it a duty to secure his Internet connection to prevent infringement of AF Holdings’ copyrighted works. Thus, the entirety of this claim involves the allegation that Hatfield failed to take certain steps – in other words, allegations of non-feasance (as opposed to misfeasance).”

Because Hatfield did not have a special relationship with AF Holdings, he had no obligation to try to secure his network to protect their copyrighted material. This ruling should have long lasting effects on a tactic that copyright trolls use, claiming “negligence” in the case of defendants who did not secure their personal computer networks – namely WiFi connections.

The Problem with the Negligence Strategy

The “negligence” tactic was used to circumvent previous court rulings that said “IP addresses do not equal people.” The main problem is that federal copyright laws would trump any claim of negligence by media companies. Additionally, Section 230 of the federal Communications Decency Act might also be used before a local personal injury claim.

This means that media companies will likely go back to the drawing board in order to come up with new ways to try to hunt down illegal downloaders. Most of the time, companies find a list of offending IP addresses and attempt to attach those IP numbers to specific people so they can take them to court. However, these methods have not been too successful in all areas of the country. And this recent case involving “negligence” is sure to slow down efforts.

Copyright Infringement and Fighting Piracy Online

While copyright protection is very important to the modern business world, the methods used to fight piracy need to be solution-based, not intimidation-based. For now, partly thanks to this ruling, private citizens don’t have to worry as much about “negligence” claims in illegal downloading lawsuits; but this does not mean media companies aren’t staying up late, trying to come up with ways to keep the copyright troll game alive.

To keep up with the latest Internet law news, sign up for Kelly / Warner Law’s newsletter. We only send the stuff that matters, and wouldn’t dream of bombarding your inbox with daily nonsense.

Updates To The Electronic Communications Privacy Act?

Internet law news alert! The House and Senate are finally getting around to updating the woefully outdated Electronic Communications Privacy Act. If Sen. Patrick Leahy’s new bill passes, it will be that much more difficult for law enforcement entities to get their hands on personal email correspondences.

Give Me The Quick Low Down On The Electronic Communications Privacy Act

Enacted in 1986, the Electronic Communications Privacy Act was passed into law to, well, do exactly what its name suggests – protect the privacy of electronic communications. But if you can think back to 1986, you’ll remember that email wasn’t exactly commonplace. In fact, back then, most politicians considered e-mail to be transitory and therefore not all that private. As such, the act classifies electronic communications as “business records” and the ECPA only requires officials to obtain an easily acquirable administrative subpoena to gain access to emails. Moreover, per the statute, emails older than 180 days are considered transient, and therefore semi-public.

What Will Change If The New Bill Is Passed?

If the new bill is passed, law enforcement agents will have a tougher time getting subpoenas to read emails. Instead of just having to acquire an administrative subpoena, which only requires proving “reasonable grounds,” the stricter standard of “probable case” will need to be established before a subpoena is granted to access the emails and electronic communications in question.

The new statute would also eliminate the 180-day stipulation.

The bill being introduced in the Senate will only affect email and the content of social media messaging and specific types of cloud-communications. It will not affect how law enforcement officials obtain IP address, email addresses and names. Why? Because prosecutors need IP addresses, email address and other identifying information when building a case. In other words, in order to meet the standards necessary to obtain a probable cause subpoena, investigators need to be able to use the relevant addresses and names to demonstrate that they are pursuing the correct person.

With the election in full-swing, it’s unlikely we’ll see any movement on this proposal until, at the earliest, March of 2013.

Are you a business person who needs to keep abreast of the latest Internet law news? If yes, be sure to sign up for the Kelly / Warner Internet law newsletter. We’ll send you the important information when it matters, without clogging up your inbox.

Puerto 80 Gets Their Seized Domains Back

domain dispute lawyer
Spanish website company Puerto 80 is finally getting their seized domains back from the ICE after 20 months.

Looks like the U.S. Immigration and Customs Enforcement Agency (ICE) had a change of heart concerning a popular Spanish Internet company’s domains. Nearly 20 months ago, Puerto 80 – an umbrella corporation for the Rojadirecta family of sites – curiously had their Web properties seized; curious because the reason for the seizure was spurious at best. What caused the flip-flop? Judge Richard Posner.

We’ll Take Those Domains, Thank You Very Much

In January of 2011, online legal watchers were aghast that the ICE was able to seize the websites of a foreign company, while standing on a very shaky legal leg. The sites in question were the Rojadirecta .coms and .orgs, a community of sites for professional sports fans. They featured discussion boards and links to game streams.

What made the original domain takeover especially suspect was that despite a Spanish court’s ruling, which said the sites were not in violation of Spanish law, the U.S. government would not release the sites while awaiting an exploratory hearing. Puerto 80 reasoned in a legal filing, “The [U.S.] government has not shown and cannot show that the site ever was used to commit a criminal act, much less that it will be in the future. By hosting discussion forums and linking to existing material on the internet, Puerto 80 is not committing copyright infringement, let alone criminal copyright infringement.” Judge Paul Crotty, however, was not hearing it and explained his decision by focusing on Puerto 80’s ostensible ability to redirect customers easily: “ has a large Internet presence and can simply distribute information about the seizure and its new domain to its customers.” U.S. officials also made it clear to Puerto 80 that the only chance they had of getting their sites back was if they prohibited users from linking to any U.S. content.

U.S. Government Drops Claim After Posner Intellectual Property Ruling

After fighting to hold onto Puerto 80’s family of websites, last month, the U.S. government dropped their strangle hold with a terse memo:

The Government respectfully submits this letter to advise the Court that as a result of certain recent judicial authority involving issues germane to the above-captioned action, and in light of the particular circumstances of this litigation, the Government now seeks to dismiss its amended forfeiture complaint. The decision to seek dismissal of this case will best promote judicial economy and serve the interests of justice.

And it all had to do with a ruling handed down by one of America’s most respected jurists, Richard Posner. In the case of MyVidster v. Flava Works, Posner affirmed that embedding video was not copyright infringement. As such, federal officials had no choice but to release the Puerto 80 sites. After all, if case law in the United States does not back up the ICE’s assertion, there’s little legal ground for them to stand on.

It’s no secret that officials are looking to thwart online piracy by any means possible, but it looks like this time their plans were foiled by Judge Posner.

To keep up with the latest online intellectual property news, follow the Kelly / Warner blog — we’re Internet lawyers who spend a lot of time thinking about such things.