In the past two weeks, I’ve twice blogged about the Ninth Circuit’s opinion in Barnes v. Yahoo. This case split the Ninth Circuit from other circuits as to how the CDA should be applied – should it support a 12(b)(6) motion to dismiss, or should it be treated as an affirmative defense? In deciding that the

In what is likely to be seen as a watershed moment for the application of the Communications Decency Act of 1996 (the “CDA”), the Ninth Circuit Court of Appeals has released an opinion in Barnes v. Yahoo that has the potential to dramatically increase the cost of defending social media and computer service providers.

The

In September 2008, the Virginia Supreme Court unanimously ruled that Virginia’s then-enacted anti-spam laws were per se unconstitutional on the grounds that they violated the First Amendment right of freedom of speech. At the time, Virginia’s anti-spam laws prohibited the sending of unwanted, unsolicited e-mails, both commercial and non-commercial.

The Virginia Supreme Court argued that

On Aug. 27, 2008, in the case Io Group, Inc. v. Veoh Networks [1] (Veoh), U.S. Magistrate Judge Howard R. Lloyd granted Veoh’s motion for summary judgment, that it qualified for “safe harbor” protection under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. The Veoh decision has been hailed by some as a major victory for Internet service providers and proponents of the sufficiency of the DMCA in addressing copyright infringement issues over the Internet. Does this decision supplant Grokster as the current precedent of U.S. courts with respect to an analysis of the legality of websites featuring user-generated content (UGC)? The Supreme Court’s decision in Grokster established that a service provider that has provided a platform and has promoted its use to infringe copyright or foster infringement could be found liable for the resulting acts of infringement by third parties. [2] In other words, if the service provider’s website has been used, to a significant degree, as a hub of infringing content, then such service provider may not be able to raise the safe harbor provisions of the DMCA as a defense to secondary copyright infringement.[3] Precedential considerations aside, a closer look at the facts of Veoh reveals that the court’s holding is actually quite limited in scope. 

The plaintiff in Veoh, Io Group, Inc. (Io), a publisher of adult video content, claimed in the lawsuit that it discovered clips from 10 of its copyrighted films had been uploaded and viewed on veoh.com without its authorization. Considering that the DMCA was created, in part, to provide a process for copyright owners to police and limit infringing activity, it would be paramount for any copyright owner seeking recourse for a claim of infringement to have complied with the procedures in place under the DMCA[4] prior to filing a lawsuit. Assuming that the website provided a copyright-infringement-claim designated agent to contact regarding infringement claims, a copyright owner would be required to have submitted DMCA-compliant notices of infringement to such designated agent, and have such agent fail to remove the allegedly infringing content, to have an actionable claim. In this case, Veoh had a designated agent assigned to review takedown notices, and maintained terms of use that set forth procedures that were compliant with the DMCA. Plaintiff Io, on the other hand, seemingly ignoring the DMCA procedures entirely, did not send a takedown notice to, or otherwise inform, Veoh that it had determined that its film content had been uploaded to the Veoh website without authorization. Actually, receipt of the complaint was the first notice Veoh received regarding Io’s infringement issues. Strike one.Continue Reading DMCA Alive and Well? An Analysis of the Veoh Decision

The U.S. District Court for the Southern District of New York recently issued a “first-of-its-kind” opinion in a case with potentially wide-ranging implications for anyone engaged in the online dissemination of news. (See, The Associated Press v. All Headline News Corp., et al., 08 Civ. 323 (PKC), Memorandum and Opinion, dated Feb. 17, 2009). By

Actress Charlize Theron has settled a lawsuit brought against her by watchmaker Raymond Weil (RW) for breaching a contract to exclusively promote its watches. The terms of the settlement were undisclosed, but it came just more than a month after a federal judge in New York concluded that Theron had breached her agreement, and that Raymond Weil was entitled to prove to a jury that it sustained damages.

In 2005, Theron, who was named by Esquire Magazine as “The Sexiest Woman Alive,” signed an agreement to promote Raymond Weil’s “Shine” collection through advertising and by wearing the watches exclusively. However, during the contract term, she was photographed at a screening of a film produced by her production company wearing a Dior watch.

A photograph of Theron wearing the Dior watch made its way to Tourneau LLC, a major watch retailer and manufacturer, which published the photo in Tourneau Times, a publication the company distributes to high-spending customers. The caption under the photo read, “Charlize Theron wears Dior.”Continue Reading Actress Charlize Theron Settles With Watchmaker

Target Corporation and Apple, Inc. have reached agreements with the National Federation of the Blind (NFB) to make changes to their websites to accommodate blind consumers. The agreements follow a groundbreaking federal ruling concluding that retailers with physical locations must make accommodations to their websites under the Americans With Disabilities Act (ADA).

In addition, the

New York Attorney General Andrew M. Cuomo has announced plans to file suit against Arbitron, alleging that the company has deceptively claimed that its new radio ratings system fairly measures audiences, when in fact it underrepresents African American and Latino listeners.

Arbitron has decided that the best defense in this instance is an offense, and has beat Attorney General Cuomo to court. Before the AG’s office could file its suit, Arbitron filed its own suit against the attorney general in U.S. District Court for the Southern District of New York, seeking to protect its free speech rights through injunctive relief.

The dispute concerns Arbitron’s long-running efforts to replace its paper-diary method of measuring audiences with new electronic Portable People Meters (PPMs). Because paper diaries rely on the memory of the participating listeners, they have been criticized as being unreliable and inaccurate. The PPMs are worn by participants and pick up hidden codes in radio broadcasts, thereby automatically recording participants’ listening habits.Continue Reading Arbitron, NY AG Go To Court Over Ratings Spat

The criminal conviction of Jeremy Jaynes—the first-ever such conviction under Virginia’s strict anti-spam law—has been vacated in a ruling in which Virginia’s highest court concluded that the law in question is unconstitutionally overbroad. Had Jaynes’ conviction stood, he could have served as much as nine years in prison.

Jaynes was convicted under the Virginia Computer Crimes Act of illegal spam for sending tens of thousands of unsolicited commercial emails to subscribers of America Online, Inc. (AOL). Jaynes allegedly falsified the header information and sender domain names before transmitting the emails in violation of the law. When investigators searched his home, they found electronic records containing the emails of some 1.3 billion users.

A resident of Raleigh, N.C., Jaynes was tried in Loudoun County, Va., where AOL had its headquarters at the time that the alleged spam was sent. He was convicted by a jury, and his conviction was upheld by a Virginia Court of Appeals.Continue Reading Va. Spam Law Ruled Unconstitutional; Spammer Conviction Overturned