TechLaw

Justice Sotomayor's Potential Cyberlaw Influence? Not Much

It was pleasant to note the other day that Judge Sonia Sotomayor, President Obama's choice for Associate Supreme Court Justice, has written a few opinions relating to Internet law during her time as judge in the lower federal courts. A first, apparently, and a sign of the centrality of the Internet in our business and personal affairs. From now on, the high court nominee who doesn't have a few cyberlaw decisions on his or her resume will be the remarkable case.

But does a Justice Sotomayor mean anything for the future direction of the laws that regulate online activity? No, not really. Not in the near future.

Consider this:

The Supreme Court has never reviewed a case involving the Computer Fraud and Abuse Act.

The Supreme Court has never reviewed a case involving the Electronic Communications Privacy Act.

The Supreme Court has never reviewed a case involving Section 230 of the Communications Decency Act (which gives interactive computer services immunity from most claims arising from the publication of third-party content), though it did consider, and strike down, the prohibitions against indecent online speech contained in another part of the CDA in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

The Supreme Court has never reviewed a case involving the CAN-SPAM Act or the Digital Millennium Copyright Act.

The Supreme Court has never reviewed a case involving electronic contracting, jurisdiction arising from online activities, cybersquatting or any other domain name-related dispute.

Aside from Doe v. Chao, a case involving standing to sue the federal government under the Privacy Act, the Supreme Court has never taken a case involving online privacy or security (GLB, COPPA, FTC Act, you name it). If you want to count Bartnicki v. Vopper, go ahead, though I don't think that obscure decision in any way undermines the point I am trying to make here.

So that covers that vast majority of what I consider to fall under the general heading of cyberlaw. None of it is even on the Supreme Court's radar. And I don't see that situation changing anytime soon. The Web is a welter of contracts (a state law issue), and all of the afore-mentioned statutes need many more years of intermediate appellate scrutiny before they'll make good candidates for Supreme Court review. Sure, there are plenty of prosecutorial and judicial missteps to feed our blogs. But, as the Supreme Court often reminds us (see Rule 10), the Supreme Court is not in the business of correcting erroneous applications of settled law.

What's left? Copyright, patent, and First Amendment law. The last (and only) time the high court decided a digital copyright case was Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 545 U.S. 913 (2005), a case in which Justice Souter (whom Judge Sotomayor will replace) wrote for a unanimous court that Grokster, a distributor of peer-to-peer file-sharing software, was a secondary infringer of the movie studios' copyrights. Not only did Grokster lose the case, but it inspired the high court to create a new theory of secondary liability -- "inducing" copyright infringement -- along the way. Given the apparently entrenched views already on the court, Judge Sotomayor's ascent to the Supreme Court offers little hope of benefiting copyright fair use advocates anytime soon, if at all.

First Amendment issues have traditionally been a leading source of Supreme Court activity, and it is not too far-fetched to imagine high court review of a case involving a federal government (FCC?) attempt to impose broadcast-style regulation on Internet transmissions. Here alone, I think, we have an area where Judge Sotomayor could exert some influence on cyberlaw issues. Without question, the Internet would be a far different -- and worse -- place if Reno v. American Civil Liberties Union had come out the other way. On First Amendment issues, Judge Sotomayor appears to have a rather unremarkable though liberal-leaning view of the First Amendment. About the same as the departing Justice Souter. No gain or loss for free speech proponents.

That leaves patents. In re Bilski, No. 08-964 (certiorari petition filed Jan. 28, 2009), is an important case in which the Federal Circuit curtailed the patentability of software-implemented business methods. According to SCOTUSBlog, there is a good chance the Supreme Court will grant review of the Bilski decision. Bilski was up for discussion yesterday at the Supreme Court's private cert-consideration conference, so we could know as early as Monday if Judge Sotomayor will have that one facing her in the fall. I have no idea what Judge Sotomayor's views are on the patentability of software-implemented business method patents, and I don't think anyone else does either. The Inventive Step blog unearthed a couple district court decisions. Not much there to go on.

Feel free to e-mail me (as usual) all the cases I've missed!

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Follow me on Twitter at @bnatechlaw

Five Post-Roommates.com Decisions Confine Immunity Exception to Narrow Circumstances

When the en banc Ninth Circuit decided Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d (1157 (9th Cir. 2008), a case in which the court held that a Web site could be liable as an "information content provider" of unlawfully discriminatory content that users were required to submit to the site, the prevailing view among publishers' attorneys was that they could live with it.

Speaking at a conference several months after the Roommates.com decision, Barbara W. Wall, vice president and associate general counsel, Gannett Co. Inc., said that she was “heartened” by the Roommates.com decision, rather than seeing it as a “threat” to online publisher protections created by Section 230 of the Communications Decency Act. By requiring answers to its profile-building questions, the Roommates.com Web site "turned your computer into [a Fair Housing Act] violation machine,” Wall said.

Section 230 of the Communications Decency Act gives "interactive computer services" immunity from most claims arising from the publication of content submitted by third-party "information content providers." The problem identified by Roommates.com was that profile-building forms on the Web site required users to express unlawful preferences for potential roommates. This aspect of the Web site's operation made Roommates.com an "information content provider" with respect to the unlawful content supplied by its users, the Ninth Circuit ruled. Thus, the Web site was not entitled to CDA Section 230 immunity from Fair Housing Act liability arising from this content.

Wall's reading of the Roommates.com decision has so far held up, at least in the lower court cases that have considered that aspect of the Roommates.com decision. The five cases decided since Roommates.com all pretty much bear out Wall's view that publishers lose their CDA Section 230 immunity only when they require the submission of unlawful content. In fact, one court took an even narrower view, stating that in Roommates.com it was the Web site's profile-building questions themselves that were unlawful.

In Doe v. MySpace Inc., No. 08-140 (E.D. Texas May 22, 2009), the court held that MySpace was not an "information content provider" of information contained in an online profile supplied by the plaintiff, a crime victim whose sexual assault was allegedly orchestrated through use of the MySpace Web site:

[T]he Plaintiff argues that the Defendant is an information content provider because it developed the information on the profiles which caused Julie Doe’s injuries. However, Roommates.com is not applicable to the instant case. The Ninth Circuit repeatedly stated throughout its en banc opinion that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, and information content provider. Here, however, users of MySpace.com are not required to provide any additional information to their profiles identified and later sexually assaulted. ... [A]lthough MySpace.com prompts its users to supplement their profiles with additional information via a list of categories, such conduct is insufficient to hold the Defendant out as an information content provider.

Another decision, Goddard v. Google, Inc., involved allegedly unlawful content that was submitted by a Google Adwords advertiser. The court rejected a Roommates.com-based attack on CDA Section 230 immunity, stating that Roommates.com lost its immunity "only by forcing its users to provide the allegedly discriminatory information as a condition of access."

In GW Equity LLC v. Xcentric Ventures LLC, No. 07-976 (N.D. Texas Jan. 9, 2009), the court said that Roommates.com held that a Web site would not be entitled to CDA Section 230 immunity only in cases in which "a mere question leads to liability." Merely encouraging a Web user to select a category from a broad range of proposed categories did not deprive the Web site operator of immunity for user-supplied unlawful content.

In Atlantic Recording Corp. v. Project Playlist Inc., No. 08-3922 (S.D.N.Y. March 25, 2009), the court offered an even narrower reading of the Roommates.com decision. This court believed that the questions themselves must be unlawful:

The Ninth Circuit's decision was based solely on the fact that the content on the website that was discriminatory was supplied by Roommates.com itself. It was Roommates.com that, in violation of federal and California state housing law, required potential subscribers to identify their sex, sexual orientation, and family status, and to indicate their preferred sex, sexual orientation, and family status in a roommate.

Lastly, in Barnes v. Yahoo! Inc., No. 05-36189 (9th Cir. May 7, 2009), the court described Roommates.com as holding that merely providing "neutral tools to carry out what may be unlawful or illicit" does not make a Web site an information content provider.

Looking at these cases, it's fair to say that while Roommates.com was a loss for one particular online publisher, it is causing very few problems for the rest of the Web.

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Follow me on Twitter at @bnatechlaw

Cinderella Stories

When it comes to college sports, I always root for Michigan, I can't help it. I always pick them to win it all, even though the last time Michigan won anything was when Chris Webber was on the payroll in 1993. The fact that I am wrong, that I have been wrong for 18 years in a row, means less to me than the pleasure I get from picking Michigan to win it all.

Last night when I finally finished filling out my NCAA basketball tournament brackets (I have Michigan defeating Memphis in the title game), it occurred to me (it was late!) that the way I think about the basketball tournament -- my love of the underdog and my selective memory -- is similar to the way a lot of us view tech policymaking. And that's a bad thing. We tend to cast tech policy matters in terms of win-lose affairs, deluding ourselves into thinking that they will be close, hard-fought close contests. Emotionally, it is satisfying to entertain the idea that the underdog will win. Marketers vs. Privacy Advocates. "Innovators" vs. Telco Operators. IP Owners vs. Fair Use Advocates. But these are never close contests. The same teams always win. What a facile way to look at law.

In sports, as in much of life, we love to root for the underdog. Hoosiers, Rudy, Rocky. It's all the same. Somebody we can identify with lands the big punch, makes a long run, hits the last-second shot and in the process pulls off an improbable yet emotionally satisfying victory.

This is a psychological booby trap that can kill you at tournament time. And in handicapping politics.

That's why they call it March Madness. Delusion is a form of madness. Very few of us possess the hard data necessary to pluck out the best teams among this year's 64 entrants. We have only our emotions. When it comes to filling out our tournament brackets, the exploits of underdogs past loom large in our memories. We remember the underdogs, not the winners.

Not many people remember who won last year's tournament. But everybody remembers Davidson's Stephen Curry draining threes against Gonzaga, Georgetown, and Wisconsin, en route to a two-point loss to Kansas in the Midwest Regional Final.

In 2006, the role of Cinderella was played by George Mason, a small school just south of Washington, D.C., which made it to the Final Four that year, stunning college basketball bluebloods Michigan State, North Carolina, and Connecticut along the way.

Cherished memories of the underdog's rare victory obscures the fact that, in nearly every contest, the favorite wins. David's late, lucky shot against trash-talking Goliath has totally overshadowed the fact that the Philistines dominated the Jews for a generation before that.

The favorite always wins. Three-quarters of the time, anyhow. Perhaps you'll recognize this list of recent tournament winners: Kansas (2008), Florida (2007), Florida (2006), North Carolina (2005), Connecticut (2004), Syracuse (2003), Maryland (2002), Duke (2001), Michigan State (2000), Connecticut (1999), and Kentucky (1998). Not an underdog in the bunch.

Just for facile fun, I've made up a list of the 16 teams I'd put in a hypothetical Tech Policy Bracket. And I've ranked them -- "seeding" in tourney jargon -- according to who has the better record and best prospects for success this year. This list isn't about who I want to win but who has actually been winning these games. All games will be played in Washington, of course.

(1) AT&T. Perennial top seed. Plodding, methodical team. Likes to Big Foot opponents, offense consists mostly of dunks.

(2) IP Owners. Recruits some of the best talent in the country, players have a reputation for flopping. Always pleading with the NCAA for rule changes.

(3) Business Lobbyists. Persistent, in-your-face defensive specialists. Along with AT&T and IP Owners, among the largest donors to the Referee Retention and Retirement Fund. Tends to get the close calls.

(4) Google. Literally came out of nowhere, boasts a "Beat us if you can" attitude. Relationship with referees will be key.

(5) Amazon. Like Google, made it to the Big Dance on hustle alone. Will shoot from anywhere on the court.

(6) Online Marketers. Rarely defeated, they still play with a chip on their shoulder. They love to run up the score on inferior opponents.

(7) White House. Story here is Barack Obama. Lit it up last fall, untested on the big stage.

(8) Apple. Flashy, high-scoring, can beat you with hardware or software. Rabid fans.

(9) Free Software. Fundamentally sound. International fan base. Plays to sellout crowds, possibly due to free ticket promotions.

(10) Bloggers. Reputation for trash-talking and making long shots, players frequently play in their pajamas.

(11) Federal Trade Commission. Fundamentally sound with lots of offensive firepower, but very rarely uses it.

(12) State Legislatures. Historically a powerhouse, lately has fallen on hard times. Resourcefulness is going to be key to victory.

(13) Newspapers. Coping with deteriorating training facilities and loss of alumni support, this year's team is wearing uniforms purchased in 1989.

(14) ICANN. Getting it done with smoke and mirrors, this team often plays abroad. Spends a lot of time on public relations.

(15) Internet User Advocates. Talented but underfunded, the players on this team have not yet learned to play together.

(16) Internet. A hardy opponent, often taken for granted.

(Going to the NIT this year: Microsoft, Yahoo!, Dell, Research in Motion)

Looking to the first round games, I see AT&T (1) easily getting past Internet (16) with a combination of throttling, traffic management, and content deals. The Apple (8) - Free Software (9) matchup is too close to call, I could go either way on it, but I would love to see Apple meet AT&T in the second round. Amazon (5) is going to have a lot of trouble with State Legislatures (12), and I don't see them being able to turn back State Legislatures' need for tax revenues, especially in these tough economic times. Google (4) has been killing Newspapers (13) for years now; that should continue in this game.

The Online Marketers (6) matchup against Federal Trade Commission (11) is game you'd think would be a close one. But historically Online Marketers have won every time. I see them getting through to the next round in easy fashion. It's also a safe bet that Business Lobbyists (3) will crush ICANN (14) in what I see as a low-scoring, defensive battle. I'll be very surprised if ICANN gets makes any of its new gTLD shots.

White House (7) versus Bloggers (10). It's a shame they had to meet in the first round, since Bloggers were so instrumental in Obama's win last fall. I'm going to give this one to White House. Having the Commander in Chief on your team has got to count for something.

The final first round game, IP Owners (2) vs. Internet User Advocates (15), is shaping up to be another walkover. Internet User Advocates didn't score a single point in the Copyright Term Extension Game and scored just a handful of points in the Digital Millennium Copyright Game. No matter how much publicity is given to this game, the fact is that if it wasn't constitutionally required IP Owners and Internet User Advocates wouldn't even be on the same court together.

My Final Four is AT&T, Google, Business Lobbyists, and IP Owners. After that, I don't see Google getting past AT&T. Maybe next year. In the other semi, IP Owners' greater experience and depth, combined with an overwhelming need to win, should get them through to the final. An AT&T-IP Owner final is really too close to call. I've been hearing for years that, if they had the opportunity, they'd cut a deal and share the title. Not this year. My pick: AT&T.

Go Blue.

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Follow me on Twitter at @bnatechlaw

Online Print-On-Demand Publisher Not Liable for Defamatory Material in Book

A federal district court in Maine held last week that Amazon.com's print-on-demand subsidiary, Booksurge LLC, was not liable for defamatory material contained in a book it printed for a customer. In essence, the court decided that BookSurge is similar to contract printer which, according to several courts, has no duty to inspect the materials it prints for defamatory content.

One of the defendants, BookSurge, is an online self-publishing service provider. Authors upload a PDF-formatted copy of their work to the BookSurge Web site. For a fee, BookSurge then publishes the work in ink-on-paper and delivers the printed materials back to the author. The plaintiff is a high school girl who alleged she was defamed in a BookSurge-printed title written by the family of another high school girl. The details of the book aren't important, though it appears from the court's opinion to involve a setting-the-record-straight effort about high school cheerleaders, boys, and ethnic slurs.

The key passage in the opinion: "BookSurge, as an independent company that transforms PDF documents into books with no editorial control and no communal process with the author, can only be found liable if it knew or had reason to know of the alleged defamation."

The court rejected the plaintiff's argument that printing-plus-marketing the author's work is sufficient to treat BookSurge as the "publisher" of the disputed work.

BookSurge contended that the First Amendment bars holding BookSurge liable for defamatory material in the books it prints on any standard more demanding than a "knew or should have known" basis. This argument relied in part on Cubby v. Compuserve Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), in which the court held that holding electronic news vendor CompuServe to a duty more rigorous than the one imposed on traditional news distributors would "impose an undue burden on the free flow of information." BookSurge's riff on Compuserve went like this:

Adopting Ms. Sandler's theory that BookSurge has a duty to read and fact-check the hundreds of thousands of books that it prints each year would restrict severely the dissemination of constitutionally protected books printed by BookSurge and other P.O.D. companies. At a minimum, BookSurge and other P.O.D. companies would be required to increase substantially their rates in order to provide the review and fact checking proposed by Ms. Sandler. Far more likely, companies like BookSurge would cease to exist, because self-publishing authors would be unable to afford the cost entailed in the review and fact checking necessary to protect P.O.D. companies from Ms. Sandler's newfound theory of liability.

The court's opinion, however, didn't pick up this argument. No First Amendment discussion, no mention of Compuserve, and no mention of the Communications Decency Act's Section 230 (which, I guess, is not applicable to this dispute because the alleged defamation was ink-on-paper). Nevertheless, the court reached the same destination via the non-constitutional, non-CDA route. BookSurge, a mere printer with no other involvement in the creation of the book, is not liable unless it knew or should have known of the defamatory character of the work, the court concluded.

Web 2.0 Tidbit. The court, in tossing out the plaintiff's tort claim for publication of private facts, observed that the publication of the fact that the plaintiff had decided to seek psychological counseling did not involve a private fact, because the plaintiff had already disclosed this information on her MySpace.com page. Publication of this information on MySpace also undermined another aspect of the publication of private facts tort, which is that the private fact published must be highly offensive to a reasonable person. "The Plaintiff's choice to reveal to the public that she sought psychological help shows that she did not believe the disclosure of this fact to be highly offensive," the court wrote.

The case is Sandler v. Calcagni, No. 07-cv-29 (D. Maine July 16, 2008).

Courts Wrestle With Proper Standard for Unmasking Posters

What showing must a plaintiff in an online defamation case make to unmask the identity of an anonymous poster? Two district courts have taken up that question in recent months and have adopted different standards: one applying summary judgment, the other using failure to state a claim.

Unlike plaintiffs in copyright disputes, who can rely upon the DMCA subpoena procedure, plaintiffs alleging defamation must contend with unsettled common law standards if they want to issue a subpoena to force a service provider to reveal the identity of an anonymous poster.

This past July, the U.S. District Court for the District of Arizona held that the First Amendment interests of anonymous posters require that the plaintiff present sufficient facts for its claim to be able to withstand a theoretical motion for summary judgment. Best Western Int'l Inc. v. Doe, 2006 U.S. Dist LEXIS 56014, No. 06-1537 (D. Ariz. July 25, 2006). It drew its inspiration from the Delaware Supreme Court, which elaborated that "the defamation plaintiff must introduce evidence creating a genuine issue of material fact for all elements of the claim that are within the plaintiff's control." Doe No. 1 v. Cahill, 884 A.2d 451, 465 (Del. 2005).

But more recently, the district court in Massachusetts questioned the usefulness of that approach. McMann v. Doe, No. 06-11825 (D. Mass. Oct. 31, 2006). The Cahill court's decision to not require a defamation plaintiff to show actual malice (because it involves facts not known to the plaintiff) creates a problem, the court observed:

Under this approach, a public figure could unmask anonymous critics without meeting an essential step in the prima facie case, a showing of actual malice. At the same time, requiring a preliminary showing of fault would mean no subpoenas would ever issue, and character assassins would be free to trumpet harmful lies from all corners of the internet.

Judge Joseph Tauro concluded that while there are "problems with the mechanics of a summary judgment test," it is nonetheless "reasonable to apply some sort of a screen to the plainitff's claim before authorizing the subpoena."

The "screen" Tauro applied was the plaintiff's failure to state a claim. The alleged defamation consisted of statements that the plaintiff "turned lives upside down" and the suggestion "to be afraid, very afraid" of him. Tauro found that these statements were "bland, vague, and subjective" and amounted to nothing more than mere opinion; neither of them support a claim for defamation.

The court declined to authorize the subpoena.