Monthly Archives: October 2012

Judge Rules To Protect Internet Trade Secret

Internet trade secret attorney and lawsuits
Google has won another trade secret legal battle.

Google has won another Internet trade secret legal battle. The online giant was embroiled in a legal tussle with both GoDaddy and The Academy of Motion Picture Arts and Sciences (a.k.a., the “Oscars” people). To be clear, neither GoDaddy nor AMPAS sued Google; instead, AMPAS filed a claim against GoDaddy over a cybersquatting/online intellectual property issue. Unexpectedly, the case ended up having a significant impact on Internet trade secret law.

Internet Trade Secret Showdown: The Academy of Motion Picture Arts and Sciences v. GoDaddy

You’ve probably seen GoDaddy “parked” sites before; they feature the infamous logo and ads. What you may not know, though, is that domain owners, who are enrolled in GoDaddy’s “CashParking” program, earn revenues off those ads. As such, domain parking has become a popular residual income stream for online marketers. Here’s the story of one.

The Story Of The Online Marketer Who Bought An “Oscar-Baity” URL?

To capitalize on online searches related to the annual Academy of Motion Picture Arts and Sciences Award Gala (a.k.a., “The Oscars”), one enterprising online marketer bought “oscarlist.com” and “oscarliveblogging.com.” During the Academy Awards seasons, owning those domains translated to significant residual revenues, via parked domain profits.

The Academy Doesn’t Like That Go Daddy “Profits” Off Their Name

When The Academy found out about the system, it wasn’t thrilled. The Oscar folks felt that the hosting company unfairly infringed on their online intellectual property rights by profiting off “parked” sites.

Enter Google

So how did Google get involved? Both GoDaddy and AMPAS were pointing fingers, saying that Google’s AdSense program is the real issue. AMPAS said it need to examine Google’s program to see if the company took precautions against intellectual property infringement, in addition to the revenue share calculations. GoDaddy, on the other hand, is tried to build an Anti-Cybersquatting Protection Act defense, arguing that Google is “solely responsible” for any inappropriate domain profit gain.

Judge’s Ruling

Despite the wishes of AMPAS and GoDaddy, Paul Grewal – a U.S. magistrate judge – ruled the Google discovery requests would be “burdensome” since the company routinely has to deal with third-party discovery demands. Specifically, the judge reasoned:

“AMPAS has not shown that the 4,000 pages of documents Google already produced does not provide the information it needs or why at least some of the additional discovery it wants was not obtained from GoDaddy or public sources.”

Bad Faith Intent To Profit In Cybersquatting Lawsuit

The crux of the AMPAS v. GoDaddy lawsuit is whether or not GoDaddy engaged in a program with a “bad faith intent to profit.” In online intellectual property cases, it’s usually not enough to say that someone is inappropriately using a questionable domain (though, there are exceptions). Plaintiffs in such cases need to prove that the defendant is somehow profiting off the alleged infringement.

There are many ways an attorney can argue profit loss, or potential profit loss, so it’s important to find a lawyer who has experience with Internet copyright litigation and Internet trade secret law.

Blog Poster Says Her Comment Was A Question, Not A Statement Of Fact In Online Defamation Lawsuit

A few days ago, we blogged about a defamation lawsuit going down in Idaho. To recap: Linda Cook, a citizen commentator on The Spokesman-Review’s website, was sued for defamation by Linda Jacobson, the former chairwoman of the local GOP chapter. Jacobson was upset over Cook’s insinuation of theft. Specifically, according to Oregon Live, Cook typed, “Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina’s blouse???”

But now Cook, who is representing herself pro se in court, says that she was not making an accusation in her post, but instead simply asking a question about the group’s accounting procedures. And she may have a point, since Cook, technically, did ask a question.

Will a judge agree with the plaintiff and rule that Cook “offended and embarrassed” Jacobson to the point of harm? Well, it very much depends on the judge.

In addition to asserting that her blog comment was a question, not a statement of fact, Cook also averred she has proof that:

  1. Jacobson didn’t provide a budget and other financial statements to the GOP Central Committee; and
  2. Jacobson failed to properly record various expenditures, as outlined by the group’s rules.

To further her argument, Cook also argued during the hearing that the onus of proving her statements were false falls on the plaintiff, since Jacobson is a “public figure” and therefore must adhere to “actual malice” standards.

Click Here To Read More About ‘Actual Malice’ Standards For Public Figures In Defamation Lawsuits

The former committee chair is suing for at least $10,000 in defamation damages, even though the comments in question were only up for about 2.5 hours.

Defamation lawsuits very much depend on the individual circumstances of a given case. If you want to consult with an attorney that is well-versed in the nuances of slander and libel law, feel free to contact Kelly/Warner law today. We’ve successfully helped many with their defamation lawsuits, and we’re here to help you, too.

Clarkson Says It’s A Libel Free World On The Internet. He’s Wrong.

jeremy clarkson
Top Gear host Jeremy Clarkson is tweeting license plates. Could he land in defamation hot water?

Is there a difference between online defamation and offline defamation? Jeremy Clarkson, host of the popular television show Top Gear, seems to think so. A good-driving fanatic, Clarkson has taken to outing motorists on his Twitter account. If he catches someone doing something dangerous, he tweets their license plate number, usually with an acerbic quip.

In response to questions about his Twitter activity, Clarkson said, “It [Twitter] has no actual use, but it’s a libel free world out there in the electronoshphere.”

While some may secretly appreciate the public shaming of bad drivers (hey, they can be unsafe), Clarkson could run into online defamation trouble if he continues. Why? Because libel laws do apply to online activity.

Yes, in certain jurisdictions, there are different rules for online and offline libel, but I don’t believe there is a single jurisdiction in the world that says: “If it was done online, it’s not defamation.”

Click here for a list of online defamation lawsuits that have made news over the past year.

If Clarkson were in the United States, and tweeted the license plate of a car that did break the law, he’d probably win that online defamation lawsuit. The plaintiff in this hypothetical situation would have to prove they didn’t break the law. If the plaintiff, however, succeeded in doing so, and the tweets somehow harmed the plaintiff, Clarkson could be brought up on libel charges.

But the more likely scenario is a typo. What happens if Clarkson accidentally tweets out the wrong license plate? He could be sued for online defamation.

So, the next time you’re thinking about letting loose on Twitter, remember you’re not immune from being sued for defamation. Even if you delete it quickly, if it’s seen, and your adversary manages to capture the content, you could find yourself inside a courtroom, fighting Internet libel charges..

Tweet smartly! And if you find yourself in need of an online Twitter defamation lawyer, get in touch.

Grooveshark’s Artist-Friendly Move Is Sure To Enrage Labels

streaming music onlineYou know the old saying: If you can’t beat ‘em, join ‘em – and online music site, Grooveshark, seems to be taking that sage advice to heart. Instead of getting into bed with the labels, they’re reaching out to artists – a definite sign the company is looking to the future, not miring themselves in the label-model. But will this new move anger the RIAA gods? You better believe it. Why? Because Grooveshark is going to allow users to pay artists directly.

Click Here To Read More About The Legalities Of Streaming Music On The Web

Why Is Grooveshark Hard To Kill?

If you follow file sharing news, then you know that Grooveshark is one of the more bothersome thorns in the RIAA’s side. The platform’s user-sharing format is set up in such a way that it evades certain intellectual property laws. The simple reason Grooveshark has managed to stick around, while others failed, can be succinctly explained in the company’s unofficial motto: Grooveshark does not violate the Digital Millennium Copyright Act.

Over the years, lobbyists and associations have tried to concoct ways to bury Grooveshark. But nothing has stuck. Since Grooveshark ostensibly follows DMCA takedown notice procedures, it’s tough to nail the music streaming service. Yes, there have been accusations that employees are the ones uploading infringing material, but as far as I know, that has yet to be proved.

The New Grooveshark Updates – What It Means

So, on November 1, not only is Grooveshark going to have a snazzy new design, but it will also feature a new service called Flattr. Perhaps the next big thing in crowdsourcing and crowdsupporting, Flattr allows users to deposit money into an account; then, similar to a Facebook “like,” users can choose to “flattr” an artist. At the end of each month, a given user’s account is split between all the people they flattr’d that month. So, let’s say you have $10 in your account for October, and you “flattr” two artists during the month, they would each get $5 from you at the end of the month.

Pretty ingenious if you ask me; the labels are going to despise it and there’s a good chance the “kids” will be all over it – further widening the divide between politics, traditional business models and Internet innovation.

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Reddit v. Gawker: Is “Doxing” Illegal?

SOPA and Reddit
Reddit and Gawker are at war over doxxing.

First it was Reddit v. Digg, now it’s Reddit v. Gawker. Over the past several weeks, the two websites have been at war over an online privacy kerfuffle.  Redditors are upset that a Gawker author outed the identity of a redditor who actively participated in a section on the website called “jailbait”; the folks over at Gawker are upset that Reddit has some questionable sub-sections, like “jailbait.” And now a lot of people are asking “is doxing illegal?”

r/Jailbait and r/creepshots: Online Privacy v. Fighting Misogyny

The question of what constitutes free speech on the Internet is a hotly debated topic. And for Web platforms that rely on user generated content, it’s a tough call. On the one hand, no respectable platform wants to be associated with certain undesirable communities – like ones that take scandalous pictures of unsuspecting women and then post them online (r/creepshots). But on the other hand, free speech is a slippery slope. As such, many websites have to draw a sometimes uncomfortable line: so long as content is not technically illegal, it gets to stay.

Since, according to available reports, no women under the age of 18 were ever found to be posted on reddit’s r/jailbait thread, then the participants didn’t technically break the law. The legality of the creepshots section was a little less clear. For a while, Reddit  stuck to a “free speech is free speech, even the stuff we don’t like” stance. But eventually, the community’s opinion won out and both r/’s were closed.

But then a journalist for Gawker decided that shutting down the sections wasn’t enough punishment, did some investigating, and published the name of the jailbait moderator, calling him “the biggest troll on the Web.”

Redditors Don’t Take Kindly To “Doxxing”

The Gawker author committed a cardinal Reddit sin: “doxing.” Doxing is when you out a person, who uses an online alias, on the Internet. Many redditors view doxing as a dangerous form of vigilante justice. More than that, the platform has always taken pride in being a “safe haven for anonymous users.” Doxing doesn’t mix well with those ideals.

To show their displeasure with Gawker, many Reddit moderators have banned Gawker links – and the battle is playing out on tech blogs and websites across the globe.

Is Doxing Illegal?

Wondering if doxing is illegal? Well, there is no simple answer. Each situation is different. For example, doxing can result in a messy lawsuit if the name of the person released is wrong. The person who makes that kind of mistake can take it to the bank that they’ll be slapped with a defamation lawsuit.

In this instance, however, a retired FBI agent told CBS News that neither party engaged in illegal acts.

Need to speak with an attorney that deals in Internet law matters? Contact Aaron Kelly.

Controversial TheDirty.com Defamation Lawsuit Still Happening

online defamation casesDespite admitting to sexual relations with “that student,” Sarah Jones – Bengals cheerleader turned high school educator – is continuing with her defamation lawsuit against TheDirty.com. You may be thinking: How the heck can she continue with the lawsuit if she admitted that she slept with a student? Wasn’t that what she was suing over?

And if that question did cross your mind, it’s a fair one. But defamation lawsuits are often nuanced, and Sarah Jones’ is no different. You see, she didn’t just sue over TheDirty.com saying that she had sex with a student; she was suing because the website said she was “promiscuous” and had “STDs.” Another specific claim in her suit is that Richie, himself, posted “Why are high school teachers freaks in the sack” near her photo.

The trial is expected to last two to three days. Nik Richie, founder of TheDirty.com, and Jones’ parents are expected to take the stand, in addition to several other witness being called by the defense, which have yet to be identified by name in the press.

Another interesting factor stemming from Jones’ October 8th guilty plea is whether or not text messages admitted into evidence in her criminal trial can now be used in her civil defamation trial. Lawyers for TheDirty.com want them admitted, but the criminal judge has yet to weigh in on the matter.

This suit has been closely watched since the beginning, when William Bertelsman, a U.S. District judge, ruled that TheDirty.com was not protected under Section 230 of the Communications Decency Act, which provides a certain level of immunity for websites that rely on user generated content (UGC).

In order to have a shot at winning this case, Jones will most likely have to prove that (a) she was not promiscuous and (b) she does not have STDs. Whether or not Richie’s statement about being “freaky in the sack” is defamatory will be determined by the judge, based on the strengths of each legal teams’ arguments. Now, if witnesses called by the defense testify to Jones’ sexual dalliances, and the jury can be convinced that a reasonable person would consider her to “promiscuous,” then she may lose that battle.

We’ll definitely be keeping our eye on this online defamation lawsuit involving TheDirty.com over the next several weeks. Be sure to check back often to get the latest.

Doctor Defamation Lawsuit Yields Nearly Half Million For Physician

Have you ever played one of those dinner party games where everyone has to answer an impossible question? It’s usually something like, “If you were stranded on a desert island and could only bring one person and one book, who and what would they be?” Well, every so often a defamation lawsuit comes along of the same variety. A new doctor defamation lawsuit out of Oklahoma is one such case. On a social level, it’s difficult to label either the plaintiff or defendant as “the good guy.”

The Incident: A Union Worker, A Checkup & A Gun-Toting Doc

The defamation case started in 2010 when Mark Warren, a member of the Transport Union of America Local 514 and employee of American Airlines, was injured on the job. He was referred to Dr. Kovacs, one of the approved physicians under his union’s health insurance plan.

This is when things got interesting.

According to the doctor, Warren was unruly at his office, yelling about processing forms and refusing to calm down. As fate would have it, Dr. Kovacs is not only a medical professional, but he’s also a reserve police officer. So, when his new patient wouldn’t chill, Kovacs left the room and came back “with his badge on his belt and his duty weapon on his hip, locked in its holster.”

Warren, apparently, took the fire arm display as “a threat and an assault” and as such became very fearful. Undoubtedly, some sort of verbal conflict ensued and Warren eventually left the office. After the incident, American Airlines removed Dr. Kovacs from their list of authorized providers. The slight prompted him to file a defamation lawsuit, against both Mr. Warren and his union, for allegedly misrepresenting the situation, which damaged his practice.

What The Jury Decided In This Doctor Defamation Lawsuit

So, let’s review. An injured worker visits a new doctor for the first time, becomes frustrated by, what one can only assume, was a mountain of bureaucratic (but necessary) paperwork, and the attending physician pulls out a gun to calm him down. Like I said, there’s no clear winner here on the “golden rule” scale.

But the jury sided with the doctor and awarded him more than $442,000 in damages. Transport Workers Union of America Local 514 has to pay Kovacs $221,351 and Warren was ordered to pay the same. Apparently, the jury must have felt that the accusations of Warren and his union directly harmed Kovac’s business, because in U.S. defamation cases, in order for a plaintiff to win a lawsuit, they must prove that the statements in question were false and irreparably harmed an individual or company.

I must admit: I wonder if this case would have concluded differently in other states. To be honest, I can’t see this verdict coming out of a jury in one of the bigger coastal cities. But that’s what state rights are all about.

If you’ve been defamed and you’re looking for a defamation lawyer, get in touch. We’re an AV-rated law firm that caters to small- to medium-sized businesses in addition to individual cases. We look forward to speaking with you soon.

Introducing The Cloud Computing Act of 2012

Don’t you love it when politicians decide to become superheros of consumer Internet protection? Ramifications of poorly worded laws, be damned! No? Not your thing? Well, prepare to be irritated by the Cloud Computing Act of 2012.

Introduced last month by Sen. Amy Klobuchar, The Cloud Computing Act of 2012 is a group of proposed amendments to the Computer Fraud and Abuse Act that aim to “protect cloud-based businesses.” But as Eric Goldman adroitly pointed out in this Forbes.com article, the Cloud Computing Act of 2012 could actually cause many more problems than it would provide protection.

Goldman rightly, in my opinion, points out how poorly the draft proposal defines “cloud computing account” and “cloud computing service”. To put it bluntly, the definitions, as they now stand in the act, could describe nearly every interactive website on the Internet. If passed, under this new law, any website that allows users to register would technically be considered a “cloud computing service.”

The exact verbiage:

the term `cloud computing account’ means information stored on a cloud computing service that requires a password or similar information to access and is attributable to an individual, which may include allowing a customer of the cloud computing service to have multiple accounts;

The term `cloud computing service’ means a service that enables convenient, on-demand network access to a shared pool of configurable computing resources (including networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or interaction by the provider of the service.

So, why is that a bad thing? First, the bill muddies up the Internet law terrain, which allows for more frivolous lawsuits and ultimately hinders Internet innovation. Specifically, the Cloud Computing Act of 2012 does two major things:

1) Establishes that each breach of a “cloud computing account” counts as a separate CFAA offense;

2) Sets the pecuniary penalty floor at $500 per violation.

With the election just a few short weeks away, don’t expect to hear much about the Cloud Computing Act of 2012 until next year. And even then, I’d be surprised if it was passed as it’s drafted now. If they do try to push it through with the current verbiage, I’d venture a guess that we’ll see SOPA-style protests against the bill.

If you are an Internet business in need of an Internet law attorney, get in touch with Kelly / Warner today. Peruse our website; you’ll see we’re a law firm that deals almost exclusively in Internet law. As such, we know a whole lot about the industry. If you’re a startup looking for attorneys that understands everything from the difference between blackhat and whitehat SEO techniques to the legalities of crowdsourcing, look no further. Contact us today to get started.

Google to Consider DMCA Takedown Notices when Ranking Websites

If you’re 100% sure that the content on your website is unique and does not violate copyright laws, give yourself a pat on the back and breathe a sigh a relief. If you’re on the other side of the fence and wondering whether or not your content violates someone else’s copyright, keep reading — because it looks like DMCA takedown notices will play an even bigger role in your business pretty soon.

DMCA Takedown Notices Matter More Now

Google recently announced they will factor the number of valid DMCA takedowns associated with your site when ranking it. Meaning, your website ranking will take a hit for having valid DMCA complaints of copyright infringement against you in your website.

Google is doing this to reward websites whose content is unique and legitimate, and punish sites with content that infringes on someone else’s copyright.

How Many DMCA Takedown Notices Does Google Get?

Google says they now have enough data to factor in the number of legitimate DMCA takedowns they receive every day. As a matter of fact, Google says they are now receiving more DMCA takedown notices each day than they did for all of 2009, stating they received over 4.3 million URL takedown requests in just the past 30 days.

Recently, Google posted a list of over 30,000 domains for which they received takedown notices within the last 30 days. The total number of domains on Google’s list exceeds 5 million.

Is Your Domain One of Them?

Has your URL been blocked by your ISP because of a DMCA takedown notice? Did the person or company accusing you of copyright infringement have a legitimate reason to send your ISP a takedown notice? Or are you skeptical about the takedown notice being the work of a copyright troll looking to cause people grief?

No matter the situation, an attorney experienced in online copyright law and DMCA takedown notices can help you get your website back on its way to a higher ranking. A lawyer specializing in Internet law can assist you and your Internet business to formulate a strategy in order to keep copyright infringing content from making its way onto your site and what to do when another party files a DMCA takedown notice against you.

WB Going After E-Tailers For Copyright Infringement

Talk about a Goliath picking on David. According to reports, mega entertainment conglomerate, Warner Bros., has decided to launch a copyright infringement case against Amazon store operators whom they say are selling unauthorized copies of films and television shows. Specifically, they’re going after e-tailers who are hawking DVDs and BluRays of Harry Potter, Shameless, Boardwalk Empire and Treme.

The WB Suit Against Amazon Retailers Is Basically A Copyright Infringement Case

Basically, the lawsuit that Warner Brothers is waging against these online retailers is an internet copyright issue. The entertainment company is claiming that these re-sellers are unauthorized distributors and therefore in violation of various business and intellectual property regulations.

Suing Re-Sellers Could Be A Copyright Public Relations Nightmare For Warner Brothers

From a public relations perspective, it’s easy to argue that the entertainment conglomerate is making a big mistake. It’s never a swift move to tick off the people who do a lot to promote your products. The few dollars, if that, which Warner Brothers will make if they succeed in suing these Amazon retailers may not negate the publicity (and therefore revenue) that these third party e-tailers naturally generate. After all, the person who buys a Harry Potter movie from an Amazon store may enjoy it so much that they end up buying the books or seeing the next movie in the series or another movie one of the actors participates in. Not to mention that affiliate marketers don’t take kindly to mega-corps trying to intimidate via litigation threats.

Also, this legal action by Warner Brothers brings into question the relationship that many e-tailers enjoy with wholesalers. If this lawsuit comes down in favor of WB, will it then become illegal for wholesalers to sell to e-tailers?

These days, affiliate marketers and Internet retailers have an increasing amount of regulations and laws to worry about. As always, the Dot Com Disclosures (a.k.a., the online marketing regulations bible) are guidelines that every online business person should know and follow. But as of late, new European Union online privacy laws, changing Federal Trade Commission standards, and possible new federal Internet laws are all affecting the online marketing industry.

So, if you are in anyway involved in Internet marketing or online commerce, make sure you cozy up with some of the latest online intellectual property and Internet marketing lawsuits and government activity. It could save you some serious headaches down the line.