Archive for the ‘Communications Decency Act’ Category

Tweets – Decisions Released on June 29, 2009

Monday, June 29th, 2009

Communications Decency Act of 1996
Telecommunications Act of 1996
Tenth Circuit
FTC v. Accusearch, Inc.  d/b/a Abika.com
2008-8003
USDC Wyoming

Is the Federal Trade Commission entitled to enjoin a website operator from reselling personal and confidential information, including telephone records, in connection with the site? Defendant-Appellant ran a homepage that offered certain records obtainable via undisclosed third parties concerning target individuals, such as court dockets, sex offender status, tax data, romantic preferences, personality traits and even rumors. Plaintiff-Appellee procured a court order against Appellant to shut-down the intermediary website service. The instant appeal ensued. Appellant argued that an unfair-practice claim against Appellant should have been dismissed since Appellant had not directly violated any laws given its reliance on third parties to perform the searches and, further, because Appellee lacked authority to enforce the Telecommunications Act of 1996, 47 U.S.C. § 222. (Telephone records are safeguarded from unauthorized disclosure under § 702.) Appellant also urged that it was immunized from the injunction by the safe harbors provided website operators pursuant to the Communications Decency Act of 1996, 47 U.S.C. § 230. Further, Appellant contended that the injunction was unnecessary to prevent it from resuming trade in telephone records and thus was unconstitutionally overbroad. The Tenth Circuit disagreed with Appellant as to the first line of reasons it had proffered for reversal, observing that a violation of the Telecommunications Act turns upon conduct by anybody and not just the activities directly undertaken by a party. The court also held that Appellee has an implied authority to proceed against unfair practices even where those practices violate a statute Appellee lacks explicit authority to administer. The Tenth Circuit likewise sided with Appellee as to the Communications Decency Act argumentation, noting first however that should Appellant fail to satisfy a single requirement for safe harbor under the Act then Appellant could not qualify for protection. The court analyzed the Act with considerable rigor and ultimately concluded that, since Appellant had provided some informational content to buyers, Appellant had changed its status to that of an “information content provider” and thus was ineligible for statutory immunity. Finally, the Tenth Circuit held that the grant of injunctive relief had fully-complied with at least the minimal requisites set forth in U.S. v. Deberry, 430 F.3d 1294 (10th Cir. 2005). The district court did not err and thus its ruling is properly AFFIRMED.

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Tweets – Decisions Released on June 25, 2009

Sunday, June 28th, 2009

Communications Decency Act of 1996
Ninth Circuit
Zango, Inc. v. Kaspersky Lab, Inc.
2007-35800
USDC WD Washington

Does the Communications Decency Act of 1996, 47 U.S.C. § 230, shelter a distributor of Web security applications from a lawsuit that alleges the software improperly interferes with downloadable programs provided by an online media company? Defendant-Appellee sells Internet security software that blocks the operation of malware. It categorized Plaintiff-Appellant’s various downloadable and installable applications as malware and thus configured its software to block the operation of such unless explicitly consented to by an end user. Appellant sued on claims for injunctive relief, tortious interference with contractual rights, violation of the Washington Consumer Protection Act, trade libel and unjust enrichment. The district court granted summary judgment in favor of Appellee, holding that § 230(c)(2)(B) immunizes Appellee from the claims. On appeal, the Ninth Circuit observed that “this case presents a different problem, and a statutory provision with a different aim, from ones we have encountered before.” It stated that Appellee should receive safe harbor under § 230(c)(2)(B) from civil liability if Appellee is found to be a “provider” of “an interactive computer service.” The Ninth Circuit held that Appellee does qualify insofar as the plain language of the statute protects an “access software provider that provides or enables computer access by multiple users to a computer server” pursuant to § 230(f)(2), and court noted that Appellee’s application update servers faciliate such access by end users. Therefore, a provider of access tools that filter, screen, allow, or disallow content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable “is protected from liability for any action taken to make available to others the technical means to restrict access to objectionable material.” Summary judgment for Appellee AFFIRMED.

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Patent
Federal Circuit
In re Richard P. Mettke
2009-1125
Board of Patent Appeals and Interferences

Appellant obtained U.S. Patent No. 5,602,905 for an “On-Line Communication Terminal/Apparatus.” Subsequently, he applied for reissue pursuant to 35 U.S.C. §251 and declared that he believed the patent to be wholly or partly inoperative or invalid by reason of his claiming less than he had the right to claim. Appellant urged that he had inadvertently omitted claims that recited “accessing the Internet” generally and not merely accessing “commercial on-line services” as originally expressed. As a consequence, several interested parties lodged protests to the reissue under 37 C.F.R. §1.291(a) and furnished additional references not previously considered during prosecution. The examining attorney rejected the claim revisions. The Board affirmed and, further, it entered a new ground of rejection for obviousness based upon the newly-disclosed references. On appeal the Federal Circuit AFFIRMED the rejection as well as the determination as to obviousness, holding on the latter question that three fresh references considered together did support the Board’s 35 U.S.C. § 103(a) conclusion.

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Right of Publicity
Eleventh Circuit
Estate of Nancy E. Benoit v. LFP Publishing Group, LLC d/b/a Hustler Magazine
2008-16148
USDC ND Georgia

Did twenty-year-old private, nude photographs qualify under the newsworthiness exception to the Georgia right of publicity when published with an article of sensational interest? Nancy Benoit had been a professional model and wrestler. She was brutally murdered by her husband, who was a well-known professional wrestler. Twenty years prior, Benoit had permitted a third party to take personal photographs and video of her appearing privately in the nude. Following death, Defendant-Appellee obtained images from the nude photo session and published them in connection with an article about the circumstances of Benoit’s life and demise. The estate filed a lawsuit in state court alleging right of publicity violations but later removed the case to the Northern District of Georgia. The district court granted Defendant-Appellee’s motion to dismiss for failure to state a claim premised on the court’s view that “there is no dispute that Ms. Benoit’s death was a ‘legitimate matter of public interest and concern.’” The estate timely appealed. In reviewing the decision, the Eleventh Circuit analyzed the privacy right underpinnings of the right of publicity and focused on its economic element. The court held that Benoit’s nudity is not per se newsworthy. The biographical piece itself was, however, deemed newsworthy given the events it described. The pertinent issue therefore was whether the textual content could elevate the otherwise protected, personal photographs into the newsworthiness exception realm. The Eleventh Circuit answered this question in the negative, finding that the private, nude photographs were not incident to a newsworthy article but rather the biography was incident to the photographs. Moreover, the photographs were not related in time or concept to the current incident of public interest. As to the economic element, the Eleventh Circuit held that the estate was entitled to control when and whether private images are made public in order to maximize the economic benefit to be derived from Benoit’s posthumous fame. Therefore, the dismissal by the district court was ruled erroneous and the decision REVERSED and REMANDED.

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