In Automattic Inc. v. Chatwal and Automattic Inc. v. Steiner, Case Nos.: 5-13-CV-05411 and 3:13-CV-05413 (U.S. District Court, N.D. California, complaints filed November 21, 2013), Automattic Inc., the operator of WordPress.com, filed two separate suits in the U.S. District Court for the Northern District of California against two individuals it alleges made false Digital Millenium Copyright Act (“DMCA”) takedown notices. The suits claim the false notices harmed bloggers’ free speech rights and resulted in damages to Automattic Inc. for resources spent on taking down and restoring the material. The DMCA provides for damages, costs and attorneys’ fees against abusers of the takedown provision. Such remedies against abusers extend to the alleged infringer, the copyright owner and the Internet Service Provider for taking the material down and restoring it.
About kavon
California’s Do-Not-Track Law to Require New Privacy Policy Disclosures
On September 27, 2013, California Governor Jerry Brown signed Assembly Bill 370 into law. The bill requires any Web site collecting personally identifiable information (“PII”) from California residents to disclose how it responds to Web browser “do not track” signals and other similar mechanisms that provide choice about PII collection relating to an individual’s online activities. Web site operators must also disclose whether other parties may collect PII relating to an individual’s online activities when he or she uses the operator’s Web site or service. The new law takes effect January 1, 2014.
California Expands Online Privacy Rights of Minors
On September 23, 2013, California Governor Jerry Brown signed into law Senate Bill 568, which expands the privacy rights of minors in two ways. First, it prevents Web site and mobile application operators from knowingly using, disclosing, compiling, or allowing third parties to use, disclose, or compile, the personal information of minors to market or advertise certain products and services to them, including those that are dangerous, destructive, or obscene. Second, the bill requires Web site and mobile application operators to permit a minor, who is a registered user of the site or application, to remove, or to request and obtain removal of, content or information the minor posted on the site or application, unless: a. a third party posted the content or information, b. any other provision of law requires the operator or third party to maintain the content or information, or c. the operator makes the content or information anonymous. The bill also requires the operator to notify minors of the ability to remove, or to request and obtain removal of, the content or information (known as the “minor eraser”). The bill takes effect January 1, 2015.
Use of Facebook’s “Like” Feature is Constitutionally Protected Speech
In Bland v. Roberts, Case No: 12-1671 (U.S. Court of Appeals, Fourth Circuit, order entered September 18, 2013), the U.S. Court of Appeals for the Fourth Circuit held that Facebook users who use the site’s “like” feature to support a political candidate engage in constitutionally protected speech. Thus, a former employee could bring a First Amendment action against his former employer for failing to reappoint him when he “liked” the campaign page of his former employer’s election opponent.
California’s Patient Confidentiality Law to be Expanded Beyond Health Care Providers to Other Companies
On September 9, 2013, California Governor Jerry Brown signed Assembly Bill 658 into law. The bill amends California’s Confidentiality of Medical Information Act, which requires healthcare providers obtain consent before using, sharing or selling patient medical information. The bill expands the definition of “provider of health care” to include medical records providers and “[a]ny business that offers software or hardware to consumers, including a mobile application or other related device that is designed to maintain medical information.” The new law takes effect January 1, 2014.
Consumers Can Revoke Express Consent to Receive Automated Calls on Their Cellular Phones at Any Time
In Gager v. Dell Financial Services, LLC, Case No: 12-2823 (U.S. Court of Appeals, Third Circuit, order entered August 22, 2013), the U.S. Court of Appeals for the Third Circuit held that the Telephone Consumer Protection Act (“TCPA”) allows consumers to revoke “prior express consent” to receive automated calls on their cell phones at any time. The court rejected defendant’s argument there was no right to revoke consent since the law was silent on revocation. This is the first decision on these issues by any federal or state appeals court.
Selecting Domain Name That Invites Offensive Postings, Adding Offensive Headlines Defeats Communications Decency Act § 230 Immunity
In Jones v. Dirty World Entertainment Recordings, LLC, et al., Civil Action No: 09-219 (U.S. District Court, E.D. Kentucky, order entered August 12, 2013), the U.S. District Court for the Eastern District of Kentucky held that the Web site operator of “TheDirty.com” lost protection under Communications and Decency Act (“CDA”) Section 230 by choosing a domain name that invited offensive postings and supplementing user-generated defamatory content with his own comments. Section 230 grants interactive online service providers immunity from certain types of liability stemming from content created by others. Here, the site was liable for defamation since the host participated in creating the defamatory content.
ISP Lacks Standing to Sue Commercial Emailers Where it Exists Primarily to Bring Claims Against Them
In Beyond Systems, Inc. v. Kraft Foods, Inc., et al., Civil No. 08-409 (U.S. District Court, D. Maryland, order entered August 12, 2013), the U.S. District Court for the District of Maryland held that an Internet Service Provider (“ISP”) whose main objective was to sue commercial emailers under Maryland and California anti-spam laws did not have standing to bring such claims. The court stated the ISP was not “bona fide” because it did not function primarily and substantially as an ISP. It also stated an injury a party brings upon itself is insufficient to create standing to sue. Finally, the ISP lacked standing because it could not show an injury-in-fact, even though the law provided for statutory damages.
WIPO Panel Member Rejects Objection to .Express Domain
A World Intellectual Property Organization Arbitration and Mediation Center panelist recently decided that the existence of a U.S. trademark registration for the term “EXPRESS” should not bar use of the .express top-level domain (TLD), because the generic term “express” has many uses and there are a variety of domains that could be used with the TLD that would not involve the registrant’s mark.
California Federal Court Dismisses in Part Plaintiff’s Claims Against Emailer Arising under California’s Email Law
On June 18, 2013 in a case arising under California’s Commercial Email Law (“CEL”; Business and Profession Code §17529.5), Moreland v. Ad Optimizers LLC, et al., Case No.: 5:13-CV-00216-PSG, a federal court in the Northern District of California dismissed in part Moreland’s second amended complaint against an emailer where he failed to plead fraud with particularity as required by the Federal Rules of Civil Procedure 9(b). The court noted the lack of specifics alleged such as the types of allegedly false or misleading advertisements, the number of advertisements or the date ranges of the emails in each category of alleged wrong. The court further noted that Moreland did not allege the domain names for the landing sites to which the emails redirected, who those sites were registered to, any of the allegedly unlawful subject lines or the sender of any of the emails.
While the court was prepared to dismiss plaintiff’s claims on this ground alone, it nonetheless addressed Moreland’s two other arguments. The court said that plaintiff’s conspiracy claim against defendant Lopez – an owner of co-defendant Ad Optimizers – was barred by California’s Agent’s Immunity Rule, which bars a claim that an agent of a corporation conspired with its corporate principal where it acts in an official capacity on behalf of the corporation and not for individual advantage. It also barred Moreland’s claim that Lopez also conspired with at least one unnamed third party.
However, the court rejected Lopez’ argument that he was not liable under the CEL, where Lopez argued the law applied only to advertisers and not those who create and send third-party email advertisements. In support of this position, Lopez pointed to the difference between the use of “advertiser and initiator” language in §17529.4 and §17529.6 and the solitary “advertiser” language in §17529.5. The court referenced past interpretation by California courts to reject the contention.