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Archive for: telecommunication law

Telecommunication law, case C‑99/09

July 2nd, 2010, Tomasz Rychlicki

The Court of Justice of the European Union in its judgment of 1 July 2010, Case C‑99/09, Polska Telefonia Cyfrowa sp. z o.o. v. Prezes Urzędu Komunikacji Elektronicznej, ruled that article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) is to be interpreted as obliging the national regulatory authority to take account of the costs incurred by mobile telephone network operators in implementing the number portability service when it assesses whether the direct charge to subscribers for the use of that service is a disincentive. However, it retains the power to fix the maximum amount of that charge levied by operators at a level below the costs incurred by them, when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility.

Personal rights, case I ACa 949/09

February 9th, 2010, Tomasz Rychlicki

Since a couple of years he is a very controversial figure of the Polish Internet and he also has become the cause of two interesting judgments which I am going to report. Arnold Buzdygan appeared on different Polish newsgroups, where he wrotre, inter alia, on topics such as copyright, sexology, psychology and politics. His style of writing was, at least, very controversial. Due to the vulgarity of some of his statements (he claimed that such actions were performed by his followers who allegedly used his name), offers to make a bet and announcements of lawsuits and threats of beatings, a part of the Usenet community defined these behaviors as trolling and such informations was posted in the Polish Wikipedia’s entry devoted to Buzdygan’s persona. Arnold Buzdygan decided to sue.

In the petition for libel filed against the Association Wikimedia Poland and Agnieszka K., he demanded an order to remove the existing contents of the article Arnold Buzdygan in both English and Polish-language versions of Wikipedia, and to put the apology instead of these entries, and to block the possibility of future edition of the questioned article, He also requested the Court to order the Association Wikimedia Poland to pay him the compensation of moral injury and the costs of the process in the sum of 100000 PLN.

In the response to a petition, the Association of Wikimedia Poland requested the Court to dismiss the claim, pointing that such charges cannot be brought against it because of the lack of the so-called “passive legitimacy”. Wikimedia Poland stated that neither the Association itself, or persons acting on its behalf are not engaged in editing of the article on Arnold Buzdygan, Wikimedia Poland argued that it is not a database administrator of Wikipedia or administrator of the servers on which the information is stored, so it would not be possible to remove or permanent blocking of such entries.

The District Court in Wrocław dismissed the suit in judgment of 8 June 2009, case file I C 802/07. Buzdygan appealed, and his petition was rejected by the Appellate Court in Wrocław in a judgment of 17 November 2009, case file I ACa 949/09, published in Orzecznictwo Apelacji Wrocławskiej, Biuletyn Sądu Apelacyjnego we Wrocławiu, No 1 (13), p. 5, Year MMX. The court ruled that the statements published in the disputed article and the mention of trolling do not infringe on Buzdygan’s personal rights. Descriptions of Buzdygan’s activity on different forums, though they may have a pejorative connotation, were the evaluation of the expression of views issued by Arnold Buzdygan, not the description of himself. The wording that was challenged by Buzdygan does not refer to his person, but it concerned the way of formulation of his speech in a public discussion, and the measure of negative evaluation did not exceed the permissible limit.

An active participant of online forums, being a well-known and recognizable in such community is, in this sense, a “public personality”. As a public person, participating in discussions, one agrees and must reckon with the fact that his or her opinions and statements will be subjected to criticism by other users, sometimes very radically and one has to demonstrate greater tolerance and even resistance to unfavourable and unflattering opinions, and even violent attacks. The boundaries of acceptable criticism are wider in fact, than in the case of persons not participating in such discussions. The evidence proceedings during the hearings has shown that Buzdygan was and is very active participant in online forums, and he is a known figure. By applying the test of the higher degree of tolerance for unflattering opinions, the Court found that the wording of the Wikipedia entry devoted to Arnold Buzdygan did not exceed the agreed and acceptable standard.

See also “Computer crime, case V K 1595/08“.

Data retention in Poland

January 5th, 2010, Tomasz Rychlicki

The Regulation of the Minister of Infrastructure of 28 December 2009 on a detailed specification of data and types of operators of public telecommunications networks or providers of publicly available telecommunications services obliged for its retention and storage, Journal of Laws (Dziennik Ustaw) of 2009, No 226 item 1828, came into force on 1 January 2010. The operators will be obliged to perform so-called data retention for 2 years. They will have to collect data that allows to determine dialed numbers as well as a telephone used. The date and time of the connection, the type and location of the caller will also be loged. The same rules apply to Internet connections. The Regulation implements provisions of the Directive 2006/24/EC, on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC. However, in the article entitled “Służby sprawdzą, skąd i kiedy dzwonimy“, the Polish newspaper Rzeczpospolita reports Maciej Rogalski’s, the vice-president of the Polish Chamber of Information Technology and Telecommunications, statement.

The suppliers of equipment related to the mass memory, use of the possibility of lobbying also within the EU, and have suggested solutions, which have appealed to special services. However, the usefulness of the new regulation is questionable, since the subsequent use of the information collected is like looking for a needle in a haystack.

Lawmakers…

November 16th, 2009, Tomasz Rychlicki

In a recent attempt to fight against e-gambling, the Polish Ministry of Finance proposed a legislative amendments to the Act on Telecommunication Law (ATL) that introduce a “Registry of prohibited websites and services” – article 179a of the ATL. The publicly available registry will be operated by the President of the Office of Electronic Communications. According to the proposed amendments if someone would like to have its website removed from the registry – it has to provide a statement with the “evidence of a legal title to its website or a declaration about provided services” – article 179a. 5. Sigh…

Categories: Polish law | computer crime | computer law | digital economy | telecommunication law.

It is out now!

July 14th, 2009, Tomasz Rychlicki

My dear readers. All P.T. readers. I would like to draw your attention to the International Free and Open Source Software Law Review. It is an absolutely free publication on legal aspects of free and open source software. The first issue is available for download (both HTML or PDF versions) directly from its website. There, you’ll find couple of interesting articles. In particular, I recommend Shane Coughlan’s and Andrew Martin Katz’s article titled “Introducing the Risk Grid“. I will also immodestly mention that from the very beginning I was involved in the creation of the IFOSS L. Rev. and I am currently a member of the editorial board. Of course, I invite everyone to write for his periodical. Please do not hesitate to submit your papers.

There is another “Polish theme” in the IFOSS L. Rev. Great logotype and covers for the journal were created pro bono by my good friend Tomasz Politański.

My history, my personal data

March 30th, 2009, Tomasz Rychlicki

There is a really fresh judgment of the Voivodeship Administrative Court in Warsaw of 3 March 2009, case file II SA/Wa 1495/08 regarding the protection of personal data and providing and operating online services such as websites about users’ classmates.

It is therefore assumed that in accordance with article 6(2) of the Polish Act of 29 August 1997 on the Protection of Personal Data (in Polish: Ustawa o ochronie danych osobowych) not only information on the current situation of an individual decide whether we are dealing with personal data, but also information relating to what one did and who one was in the past. It means that such data are protected under the Act on Protection of Personal Data.

See also my posts entitled “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Telecommunication law, case I CSK 332/08

February 9th, 2009, Tomasz Rychlicki

The judgment of the Polish Supreme Court of 5 February 2009, case file I CSK 332/08 has been aptly commented in the title of Rzeczpospolita’s article “It is not allowed to set traps for subscribers“. Judge Krzysztof Pietrzykowski pointed out that the judgment is also about the prevention, because such cases may still occur. The operator, which benefits from providing customers with high-rate services has an obligations/duty to protect its subscribers against such traps. The principle should be different than the one that was used by TP SA (Telekomunikacja Polska S.A.). The blockade for such services should not be set on the customer’s request, it should be established by default and removed at customer’s request.

Categories: Polish Supreme Court | Polish courts | Polish law | computer law | telecommunication law.

Comparative law – literally, word for word

January 15th, 2009, Tomasz Rychlicki

Recent changes in the Polish Criminal Code regarding “computer crimes” that were introduced by the the Act to amend the Act – the Criminal Code and certain other acts of 24 October 2008, Journal of Laws (Dziennik Ustaw) No. 214, item 1344, which entered into force on 18 December 2008.

Chapter XXXIII. Offences against the protection of information

Article 265. § 1. Whoever discloses or, in violation of the law, uses information which constitutes a state secret

shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. If the information specified in § 1 has been disclosed to a person acting in the name of or for a foreign entity, the perpetrator

shall be subject to the penalty of deprivation of liberty for a term of between 6 months and 8 years.

§ 3. Whoever unintentionally discloses the information specified in § 1, with which he has become acquainted in the performance of his official function or authorisation delegated to him

shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

Article 266. § 1. Whoever, in violation of the law or obligation he has undertaken, discloses or uses information with which he has become acquainted with in connection with the function or work performed, or public, community, economic or scientific activity pursued

shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

§ 2. A public official who discloses to an unauthorised person information which is an official secret or information with which he has become acquainted in the performance of his official duties and whose disclosure can endanger a legally protected interest

shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 3. The prosecution of the offence specified in § 1 shall occur on a motion of the injured person.

Article 267. § 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic or bypass, electronic, magnetic, information or other special protection for that information

shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

§ 2. The same punishment shall be imposed on anyone, who without being authorised to do so acquires access to whole or part of an information system.

§ 3. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.

§ 4. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1-3 discloses to another person.

§ 5. The prosecution of the offence specified in § 1–4 shall occur on a motion of the injured person.

Article 268. § 1. Whoever, not being himself authorised to do so, destroys, damages, deletes or alters a record of essential information or otherwise prevents or makes it significantly difficult for an authorised person to obtain knowledge of that information,

shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

§ 2. If the act specified in § 1 concerns the record on an electronic information carrier, the perpetrator shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 3. Whoever, by committing an act specified in § 1 or 2, causes a significant loss of property

shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 4. The prosecution of the offence specified in § 1-3 shall occur on a motion of the injured person.

Art. 268a. § 1. Whoever, without being authorised to do so, destroys, damages, removes, changes lub makes an access to data difficult or in a significant way disrupts or prevents from the automatic process, gathering or transmission of such data,

shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 3. Whoever, by committing an act specified in § 1, causes a significant loss of property

shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 3. The prosecution of the offence specified in § 1 or 2 shall occur on a motion of the injured person.

Article 269. § 1. Whoever destroys, deletes or changes a record on an electronic information carrier, having a particular significance for national defence, transport safety, operation of the government or other state authority or localgovernment, or interferes with or prevents automatic collection and transmission of such information

shall be subject to the penalty of deprivation of liberty for a term of between 6 months and 8 years.

§ 2. The same penaly should apply to a person who commits offences mentioned in § 1, by destroying or replacing the information carrier or by destroying or damaging a device serving for automatic processing, gathering or transfering of information data.

Art. 269a. Whoever, without being authorised to do so, by transmission, destroy, removing, damaging or changing information data, in significant manner disrupts the work of a computer system or a teleinformatic network,

shall be subject to the penalty of deprivation of liberty for a term of between 3 months up to 5 years

Art. 269b. § 1. Whoever, produces, acquires, sells off or makes available to other persons devices or computer software adapted to perform a crime mentioned in art. 165 § 1 pt 4, art. 267 § 2, art. 268a § 1 or § 2 in connection with § 1, art. 269 § 2 or art. 269a, and computer passwords, access codes or other data that allow for the access to information stored in a computer system or teleinformatic network,

shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 2 In case of a conviction for an offense referred to in § 1, the court rules the forfeiture of items, and may decide their forfeiture if they were not the property of the perpetrator.

Here is also one ODT, 14KB, file with both versions. Please send your comments regarding the translation.

Poland defeated

November 18th, 2008, Tomasz Rychlicki

Judgement of the Court of Justice of European Communities in case C‑227/07, Commission of the European Communities v. Republic of Poland.

1. Declares that, by failing to transpose correctly Article 4(1) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), the Republic of Poland has failed to fulfil its obligations under that Directive;

Categories: Directive 2002/19/EC | EU law | Polish law | telecommunication law.

Congrats to Irish people for their referendum

July 3rd, 2008, Tomasz Rychlicki

When I see such legislative initiatives as reported by the European Digital Rights at edri.org website, I start to doubt about European integration. If the process of adopting directives looks like that (you do remember how was the Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions adopted and all this controversy with ignoring the voice of one country during the Council meeting right?). I see a lot of advantages of the Community Trade Mark system but lobbying in the European Union makes me annoyed at the bureaucrats and European bureaucracy, and you should read this post in such manner. ;)

Update on July 8, 2008.
Philippe Aigrain has written a very detailed post regarding lobby process within the EU in the field of IP law. It is available at paigrain.debatpublic.net website.

Categories: EU law | copyright law | digital economy | legal regulations on computers networks | telecommunication law.

May 6th, 2008, Tomasz Rychlicki

I started an academic platform called lawinit.com together with dr Wojciech Wiewiórowski and thanks to great help of Marcin Sochacki and Marcin Czerwiński. We think about English version too so if you are interested in such academic cooperation then you are warmly welcomed. Meanwhile, among other things there are great translations of German courts judgments provided by Justyna Kurek.

US case law on computers and IT

February 28th, 2008, Tomasz Rychlicki

Last updated on 16 January 2010.

This short compilation of US computer (IT, Internet, cyberlaw, telecommunication) case law will be also available and under later developement on my new Wiki system.

I. Jurisdiction
II. Contracts
III. Trespass to chattels
IV. Intellectual Property
V. Regulating content and speech
VI. Privacy
VII. Computer and Internet crimes
VIII. E-government
IX. Litigation

I. JURISDICTION

A. Specific jurisdiction.

International Shoe Co. v. Washington, 326 U.S. 310 (1945).
Zippo Mfg. Co. v. Zippo DOT Com, 952 F. Supp. 1119 (D. Pa. 1997).
Euromarket Designs, Inc. v. Crate & Barrel Ltd., 96 F. Supp. 2d 824 (D. Ill. 2000).
Heathmount A.E. Corp. v. Technodome.com, 106 F. Supp. 2d 860 (D. Va. 2000).
ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707 (4th Cir. 2002).
Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002).
Pavlovich v. Superior Court, 29 Cal. 4th 262 (Cal. 2002).
Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002).
Jennings v. AC Hydraulic A/S, 383 F.3d 546 (7th Cir. 2004).

B. General jurisdiction

C. Criminal analogy

United States v. Rowe, 414 F.3d 271 (2d Cir. 2005).

D. Enforcement

Louis Feraud Int’l S.A.R.L. v. Viewfinder Inc., 406 F. Supp. 2d 274 (S.D.N.Y. 2005).

II. CONTRACTS

A. Browserwrap licenses

Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 974 (D. Cal. 2000).
Specht v. Netscape Communs. Corp., 150 F. Supp. 2d 585 (S.D.N.Y. 2001).
Ticketmaster Corp. v. Tickets.Com, Inc., 2000 U.S. Dist. LEXIS 12987 (D. Cal. 2000).
Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000).
Comb v. Paypal, Inc., 218 F. Supp. 2d 1165 (D. Cal. 2002).
Cairo, Inc. v. Crossmedia Servs., 2005 U.S. Dist. LEXIS 8450 (D. Cal. 2005).

B. Shrinkwrap and clikwrap licenses

Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991).
Arizona Retail Sys. v. Software Link, Inc. 831 F. Supp. 759 (D. Ariz. 1993).
Caspi v. Microsoft Network, 323 N.J. Super. 118 (App. Div. 1999).
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
Hill v. Gateway 2000, Inc., 105 F. 3d 1147 (7th Cir. 1997).
Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 676 N.Y.S.2d 569 (App. Div. 1998).
Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332 (D. Kan. 2000).
M.A. Mortenson Co. v. Timberline Software Corp., 140 Wn.2d 568 (Wash. 2000).
Williams v. America Online, Inc., 2001 Mass. Super. LEXIS 11 (Mass. Super. Ct. 2001).
i.Lan Systems, Inc. v. Netscout Service Level Corp., 183 F. Supp. 2d 328 (D. Mass. 2002).

C. Terms Of Service

Oestreicher v. Alienware Corp., 502 F. Supp. 2d 1061 (D. Cal. 2007)

D. Software licenses

Microsoft Corp. v. Harmony Computers & Elecs., 846 F. Supp. 208 (S.D.N.Y. 1994).
National Car Rental Sys., Inc. v. Computer Assocs. Int’l, Inc., 991 F.2d 426 (8th Cir. 1993).
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
Davidson & Assocs. v. Jung, 422 F.3d 630 (8th Cir. 2005).
Bowers v. Baystate Techs., 320 F.3d 1317 (Fed. Cir. 2003).
Packeteer, Inc. v. Valencia Sys., 2007 U.S. Dist. LEXIS 21348 (D. Cal. 2007).

E. FLOSS licenses

Computer Assocs. Int’l v. Quest Software, Inc., 333 F. Supp. 2d 688 (D. Ill. 2004).
Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188 (11th Cir. 2001).
Progress Software Corp. v. MySQL AB, 195 F. Supp. 2d 328 (D. Mass. 2002).
SCO Group, Inc. v. International Business Machines Corp., Not Reported in F.Supp.2d, 2005 WL 318784 (D.Utah, 2005).
Wallace v. Free Software Found., Inc., 2006 U.S. Dist. LEXIS 53003 (D. Ind. 2006).
Wallace v. IBM, 467 F.3d 1104 (7th Cir. 2006).

F. Contractual and statutory liability for defective software

Kaczmarek v. Microsoft Corp., 39 F. Supp. 2d 974 (N.D. Ill. 1999).
In re AOL, Inc. Version 5.0 Software Litig., 168 F. Supp. 2d 1359 (S.D. Fla. 2001).
In re SONY BMG CD Technologies Litigation, 2005 U.S. Dist. Ct. Motions 9575, 2006 U.S. Dist. Ct. Motions LEXIS 9329, (S.D.N.Y. 2006).

G. Auction sites and contracts

Perez v. Hung Kien Luu, 2007 Tex. App. LEXIS 8670 (Tex. App. 2007)

III. TRESPASS TO CHATTELS

A. Trespass involving spam

Compuserve Inc. v. Cyber Promotions, 962 F. Supp. 1015 (D. Ohio 1997).
America Online v. LCGM, Inc., 46 F. Supp. 2d 444 (D. Va. 1998).

B. Trespass to online databases

Ebay, Inc. v. Bidder’s Edge, 100 F. Supp. 2d 1058 (D. Cal. 2000).
Buchanan Marine, Inc. v. McCormack Sand Co., 743 F. Supp. 139 (E.D.N.Y. 1990).
Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (Cal. 2003).
Assessment Techs. of Wi, LLC v. Wire Data, Inc., 361 F.3d 434 (7th Cir. 2004).
Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627 (D. Pa. 2007).

IV. INTELLECTUAL PROPERTY

A. Copyright
1. Protection of computer software

Synercom Technology, Inc. v. University Computing Co., 462 F. Supp. 1003 (D. Tex. 1978).
Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986).
Sega Enters. v. Maphia, 857 F. Supp. 679 (D. Cal. 1994).
Religious Tech. Ctr. v. Lerma, 40 U.S.P.Q.2D (BNA) 1569, 996 U.S. Dist. LEXIS 15454 (E.D. Va. 1996).
Lotus Dev. Corp. v. Borland Int’l, 516 U.S. 233 (U.S. 1996).

2. Reverse engineering, technological protection measures, anti-circumventions (17 U.S.C. §§ 1201-1204)

Hubco Data Products Corp. v. Management Assistance, Inc., 219 U.S.P.Q. (BNA) 450, 1983 U.S. Dist. LEXIS 19515.
Vault Corp. v. Quaid Software, 847 F.2d 255 (5th Cir. 1988).
Sony Computer Entm’t Am., Inc. v. GameMasters, 87 F. Supp. 2d 976 (N.D. Cal. 1999).
RealNetworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wash. 2000).
Felten v. RIAA, No. CV-0102669 (D.N.J. Nov. 27, 2001).
Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
United States v. Elcomsoft Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002).
Pearl Investments, LLC v. Standard I/O, Inc., 257 F.Supp.2d 326 (D.Me. 2003).
Lexmark Int’l v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004).
321 Studios v. Metro-Goldwyn-Mayer Studios, Inc., 307 F.Supp.2d 1085 (N.D. Cal. 2004).
I.M.S. Inquiry Mgmt. Sys., Ltd. v. Bershire Info. Sys., Inc., 307 F.Supp.2d 521 (S.D.N.Y. 2004).
Sony Computer Entm’t Am., Inc. v. Filipiak, 406 F. Supp. 2d 1068 (D. Cal. 2005).
Davidson & Assocs. v. Jung, 422 F.3d 630 (8th Cir. 2005).
Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178 (Fed. Cir. 2005).
Storage Tech. Corp. v. Custom Hardware Eng’g & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005).
Egilman v. Keller & Heckman, LLP, 401 F. Supp. 2d 105 (D.D.C. 2005).
Ticketmaster L.L.C. v. RMG Techs., Inc., 507 F.Supp.2d 1096 (D. Cal. 2007).
Auto Inspection Services, Inc. v. Flint Auto Auction, Inc. et al. (E.D. Mich. 2007).

3. Different copyright infringement issues (civil actions, DMCA, websites)

L.A.Times v. Free Republic, 54 U.S.P.Q.2D (BNA) 1453, 2000 U.S. Dist. LEXIS 5669 (D. Cal. 2000).
Umg Recordings v. Mp3.com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000).
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
Tur v. Youtube, Inc., 2007 U.S. Dist. LEXIS 50254 (D. Cal. 2007).
Biosafe-One, Inc. v. Hawks, 524 F. Supp. 2d 452 (D.N.Y. 2007).

4. Derivative Works issues (framing, deep links)

Futuredontics, Inc. v. Applied Anagramics, 45 U.S.P.Q.2D (BNA) 2005, 1998 U.S. Dist. LEXIS 2265 (C.D. Cal. 1998).
Ticketmaster Corp. v. Tickets.com, Inc., 54 U.S.P.Q.2D (BNA) 1344, 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. 2000).
Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah 1999).
Digital Equip. Corp. v. AltaVista Tech., 960 F. Supp. 456 (D. Mass. 1997).
Nissan Motor Co. v. Nissan Computer Corp., 2000 U.S. App. LEXIS 33937 (9th Cir. 2000).

5. Communication Act, satellite programming

DirecTV, Inc. v. Hoa Huynh, 503 F.3d 847 (9th Cir. 2007).

B. Trademarks (domain names and unfair competition, search engines and trademarks, keywords)
1. Domain names as trademarks

Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004).
Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 74 U.S.P.Q.2D (BNA) 1385, 2005 U.S. Dist. LEXIS 6228 (N.D. Cal. 2005)
1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005).

2. Cybersquatting

Sporty’s Farm L.L.C. v. Sportsman’s Mkt., Inc., 202 F.3d 489 (2d Cir. 2000).
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002).
Barcelona.com, Inc. v Excelentisimo Ayuntamiento de Barcelona, 330 F.3d 617 (4th Cir. 2003).
Atlas Copco AB v. www.atlascopcoiran.com, 2008 U.S. Dist. LEXIS 1828 (D. Va. 2008).

3. Free speech and fair use of trademarks in domain names

C. Databases

D. Patents (software patents and business models patents)

Gottschalk v. Benson, 409 U.S. 63 (U.S. 1972).
In re Application of Walter, 618 F.2d 758 (C.C.P.A. 1980).
Diamond v. Diehr, 450 U.S. 175 (1981).
Paine, Webber, Jackson & Curtis v. Merrill Lynch, Pierce, Fenner & Smith, 564 F. Supp. 1358 (D. Del. 1983).
Arrhythmia Research Technology, Inc. v. Corazonix Corp., 958 F.2d 1053 (Fed. Cir. 1992).
In re Abele, 684 F.2d 902 (C.C.P.A. 1982).
In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994).
State St. Bank & Trust Co. v. Signature Fin. Group, 149 F.3d 1368 (Fed. Cir. 1998).
AT&T Corp. v. Excel Communs., Inc., 172 F.3d 1352 (Fed. Cir. 1999).
Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343 (Fed. Cir. 2001).
British Telecomms. PLC v. Prodigy Communs. Corp., 217 F. Supp. 2d 399 (S.D.N.Y. 2002).
Eolas Techs., Inc. v. Microsoft Corp., 399 F.3d 1325 (Fed. Cir. 2005).

E. Trade secrets

Integrated Cash Management Services, Inc. v. Digital Transactions, Inc., 920 F.2d 171 (2d Cir. 1990).
Ashland Management v. Janien, 82 N.Y.2d 395 (N.Y. 1993).
Barr-Mullin, Inc. v. Browning, 108 N.C. App. 590 (N.C. Ct. App. 1993).
Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655 (4th Cir. 1993).
Rivendell Forest Prods. v. Georgia-Pacific Corp., 28 F.3d 1042 (10th Cir. 1994).
Avtec Sys. v. Peiffer, 38 U.S.P.Q.2D (BNA) 1922, 1995 U.S. App. LEXIS 25901 (4th Cir. 1995).
Garelli Wong & Assocs. v. Nichols, 2008 U.S. Dist. LEXIS 3288 (D. Ill. 2008).
Bank Julius Baer & Co. v. Wikileaks, 2008 U.S. Dist. LEXIS 14758 (D. Cal. 2008).

V. REGULATING CONTENT AND COMMUNICATION

A. Pornography

Reno v. Aclu, 521 U.S. 844 (U.S. 1997).

B. Defamation and information torts

Stratton Oakmont v. Prodigy Servs. Co., 1995 N.Y. Misc. LEXIS 229 (S.D.N.Y. Misc. 1995).
Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997).
Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980 (10th Cir. 2000).
Green v. Am. Online (AOL), 318 F.3d 465 (3d Cir. 2003).
Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003).
Barrett v. Rosenthal, 114 Cal. App. 4th 1379 (Cal. Ct. App. 2004).
Batzel v. Smith, 372 F. Supp. 2d 546 (C.D. Cal. 2005).
Universal Commun. Sys. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007).
Mazur v. Ebay, 2008 U.S. Dist. LEXIS 16561 (D. Cal. 2008).
Chi. Lawyers’ Comm. for Civ. Rights Under Law v. Craigslist, 2008 U.S. App. LEXIS 5472 (7th Cir. 2008).

C. Spam

Media3 Techs., LLC v. Mail Abuse Prevention Sys., LLC, 2001 U.S. Dist. LEXIS 1310 (D. Mass. 2001).
White Buffalo Ventures, LLC v. Univ. of Texas, 420 F.3d 366 (5th Cir. 2005).
Hall v. EarthLink Network, Inc., 396 F.3d 500 (2d Cir. 2005).
Phillips v. Worldwide Internet Solutions, 2006 U.S. Dist. LEXIS 44152 (D. Cal. 2006).
Jaynes v. Commonwealth, 48 Va. App. 673 (Va. Ct. App. 2006).
United States v. Cyberheat, Inc., 2007 U.S. Dist. LEXIS 15448 (D. Ariz. 2007).

D. Liability of internet service providers

Religious Tech. Ctr. v. Netcom On-Line Commun. Servs., 907 F. Supp. 1361 (D. Cal. 1995).
United States v. Am. Library Ass’n, 539 U.S. 194 (U.S. 2003).
ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619 (4th Cir. 2001).
Recording Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., 359 U.S. App. D.C. 85 (D.C. Cir. 2003).
Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004).
Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (D. Wash. 2004).
Rossi v. Motion Picture Ass’n of Am., Inc., 391 F.3d 1000 (9th Cir. 2004).
CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004).
Charter Communs., Inc. v. Charter Communs., Inc., 393 F.3d 771 (8th Cir. 2005).
Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).

VI. PRIVACY (cookies, adware, spyware)

A. Cookies, adware

In re Doubleclick Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001).
In re Intuit Privacy Litig., 138 F. Supp. 2d 1272 (C.D. Cal. 2001).
Directv, Inc. v. Jae Sun Chin, 2003 U.S. Dist. LEXIS 15815 (W.D. Tex. 2003).

B. Spyware

Specht v. Netscape Communs. Corp., 150 F. Supp. 2d 585 (S.D.N.Y. 2001).
Specht v. Netscape Communs. Corp., 306 F.3d 17 (2d Cir. 2002).
Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d 1219 (N.D. Ill. 2005).

C. Other issues
1. Posting different types of information

Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (D. Cal. 1998).
In the Matter of Geocities, 127 F.T.C. 94 (F.T.C 1999).
Remsburg v. Docusearch, Inc., 149 N.H. 148 (N.H. 2003).
Topheavy Studios, Inc. v. Doe, 2005 Tex. App. LEXIS 6462 (Tex. App. 2005).
John Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005).
Federal Trade Commission, Gateway Learning Corporation; Analysis to Aid Public Comment, 69 Fed. Reg. 42176, (July 14, 2004).
Lambert v. Hartman, 2008 U.S. App. LEXIS 4019 (6th Cir. 2008).

2. Data retention and interception (administrative, civil and criminal aspects)

Steve Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457 (5th Cir. 1994).
McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998).
Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (D. Cal. 1999).
United States v. Kennedy, 81 F.Supp.2d 1103 (D. Kan 2000).
United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. 2001).
Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001).
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir. 2003).
United States v. Steiger, 318 F.3d 1039 (11th Cir. 2003).
Recording Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., 359 U.S. App. D.C. 85 (D.C. Cir. 2003).
Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004).
United States v. Councilman, 418 F.3d 67 (1st Cir. 2005).
Rozell v. Ross-Holst, 2006 U.S. Dist. LEXIS 2277, 97 Fair Empl. Prac. Cas. (BNA) 1104 (S.D.N.Y. 2006).
O’Grady v. Superior Court, 139 Cal. App. 4th 1423 (Cal. Ct. App. 2006).
Doe I v. Gonzales, 449 F.3d 415 (2d Cir. 2006).
Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007).

VII. COMPUTER AND INTERNET CRIMES

A. Hacking (system breach and/or data manipulation, etc.)

State v. McGraw, 480 N.E.2d 552 (Ind. 1985).
State v. Riley, 121 Wn.2d 22 (Wash. 1993).
Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (Cal. Ct. App. 1996).
United States v. Sablan, 92 F.3d 865 (9th Cir. 1996).
Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. Supp. 2d 817 (E.D. Mich. 2000).
Thurmond v. Compaq Computer Corp., 171 F. Supp. 2d 667 (D. Tex. 2001).
United States v. Ivanov, 175 F. Supp. 2d 367 (D. Conn. 2001).
Guin v. Brazos Higher Educ. Serv. Corp., 2006 U.S. Dist. LEXIS 4846 (D. Minn. 2006).
In the Matter of BJ’S Wholesale Club, Inc., 2005 FTC LEXIS 134 (F.T.C 2005).
United States v. Heckenkamp, 482 F.3d 1142 (9th Cir. 2007).

B. Dos, DDoS, botnets

Tyco Int’l (US) Inc. v. Doe, 2003 U.S. Dist. LEXIS 25136 (S.D.N.Y. 2003).
United States v. Ancheta, case No.2:05CR01060, unpublished (C.D. Cal. 2006).

C. Viruses, worms, trojans, timebombs

United States v. Morris, 928 F.2d 504 (2d Cir. 1991).
State v. Corcoran, 186 Wis. 2d 616 (Wis. Ct. App. 1994).
United States v. Lloyd, 269 F.3d 228 (3d Cir. 2001).
United States v. Pierre-Louis, 54 Fed. Appx. 691 (11th Cir. 2002).

D. IP crimes

United States v. Lambert, 446 F. Supp. 890 (D. Conn. 1978).
United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994).
Arista Records, Inc. v. MP3Board, Inc., 2003 U.S. Dist. LEXIS 11392, Copy. L. Rep. (CCH) P28,658 (S.D.N.Y. 2003).
United States v. Hsu, 40 F. Supp. 2d 623 (D. Pa. 1999).

E. Digital espionage, carding, e-banking robbery, online wars

F. Pornography

United States v. Maxwell, 446 F.3d 1210 (11th Cir. 2006).

G. Other

People v. Fernino, 2008 NY Slip Op 28044, 1 (N.Y. Misc. 2008).

VIII. E-government (e-administration, e-voting, technological neutrality of the state, open standards) issues

Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (D. Cal. 2004).

IX. Litigation (e-evidences etc.)

Bakhtiari v. Lutz, 507 F.3d 1132 (8th Cir. 2007).

Categories: US law | case law | computer law | telecommunication law.

What can you monitor and spy?

July 19th, 2007, Tomasz Rychlicki

The U.S. Court of Appeals for The Nninth Circuit held in its judgement in the case United States v. Forrester, 2007 U.S. App. LEXIS 16147 (9th Cir. 2007), that Dennis Louis Alba’s (co-defendant) e-mail and Internet activity did not constitute as Fourth Amendment’s search. The court ruled that even if the government’s computer surveillance went beyond the scope of former 18 U.S.C.S. §§ 3121-27 (as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Oct. 26, 2001, P.L. 107-56, Title II, § 216(a), 115 Stat. 288.), he was not entitled to suppression of evidence.

Please bear in mind that U.S. courts strictly follow the rule of fruit of the poisonous tree, that generally speaking prohibits the use of derivatives of illegal evidence in a court against a defendant. It originates from a judgement in the case Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).

Well, no wonder that such case has spawned a lot of positive and negative comments issued by the American academia. Professor Shaun Martin voiced a forcible disagreement with Judge Raymond C. Fisher who wrote the opinion. However, professor Orin Kerr was not suprised by such findings and clearly showed in his article available at volokh.com website that there was no other option.

As usually, you will find more comments and links at slashdot.org. I think that a really good punchline to Mr. Alba’s reproaches was written in the article at arstechnica.com website

In any event, readers interested in building a $10 million per month drug lab in the backyard should be aware that the government can get a list of all the phone numbers you call, the IP addresses you visit, and the people you e-mail.

I wrote about those issues before in a post titled Legal hacking, where I also briefly mentioned the case United States v. Heckenkamp, 2007 U.S. App. LEXIS 7806 (9th Cir. 2007), PDF file.

If someone is interested in Orin Kerr’s controversial (or not) statements then I recommend you to read for instance O. Kerr, “The Future of Internet Surveillance Law: A Symposium to Discuss Internet Surveillance, Privacy and the USA PATRIOT Act: Surveillance Law: Reshaping the Framework: A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It”, 72 GEO. WASH. L. REV. 1208 (Aug. 2004).

I must admit that when I see legislators’ inclinations to monitor and spy on citizens and a susceptibility of many businesses who produce and distribute software designed to protect computers users against methods such as keystroke logging or rootkit (as an example just check a fresh article posted at news.com website), I momentally recall myself Judge Stanley Sporkin’s opinion issued in the case McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998) at 220.

In these days of “big brother,” where through technology and otherwise the privacy interests of individuals from all walks of life are being ignored or marginalized, it is imperative that statutes explicitly protecting these rights be strictly observed.

I recommend you to read a judgement in the case United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. 2001), in which Nicodemo S. Scarfo questioned the use of keylogger software by the FBI, althogh its agents had search warrants.

Categories: US law | computer crime | telecommunication law.

Just ask lawyer!

July 18th, 2007, Tomasz Rychlicki

The National Legal and Policy Center organization has published at nlpc.org website a short article in which it presents a study about movies uploaded and available in Google Video that were put there without a consent or a license agreement obtained from copyright holders. Even if the NLPC does not say that, and I do not want to speculate, I just wondered for a second if this research was somehow sponsored by Viacom. I recommend to check Viacom v. Youtube, 2007 U.S. Dist. Ct. Pleadings 2103 (U.S. Dist. Ct. Pleadings 2007) to all readers interested in this dispute. Anyway, in my humble opinion, there is a key question in the NLPC article. Namely:

After all, if an ethics watchdog group with a limited budget can find scores of copyrighted productions, why can’t Google?

I am not a legal adviser of the National Legal and Policy Center but I can disclose them the answer to their simply question. Well, because it does not have to! Why? The explanation is provided in the Online Copyright Infringement Liability Limitation Act, title II of the Digital Millennium Copyright Act, Pub. L. 105-304, 112 Stat. 2860, 2877 (Oct. 28, 1998), PDF file. Provisions of §512(a)(1-5) and §512(c)(1)(A-C) clearly state exclusions afforded for the potential ISP’s liability in case of such situations as described by the NLPC and also very precisely advice what steps should be taken by a copyright holder to remove contested materials.

What is more interesting, a similiar regulation being in force in The European Union, Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), Official Journal L 178 , 17/07/2000 P. 0001 – 0016, in its article 15 clearly provides:

No general obligation to monitor

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

I have nothing more to add. At least it was free advice right?

Categories: Directive 2000/31/EC | EU law | US law | copyright law | telecommunication law.

Personal rights, case I ACa 564/04

January 25th, 2006, Tomasz Rychlicki

On 2 September 2002, Secunda company, a publisher of a portal website, posted a link to www.mlode -dupy.w.tertia.pl website on its webpage under the “Entertainment and sex” category in the “Winning websites” under the name “Young women are the best”. The link to www.mlode -dupy.w.tertia.pl website was described as follows “10 hardcore pictures galleries. One could deal with this issue far better”. The gallery no 3 featured pictures of a woman in a swimsuit, that were made during a photographic session for candidates to advertising campaign. The plaintiff who worked with models agency sued Secunda. She argued that she has never agreed to a distribution of her image, nor received any remuneration for participation in a photo session. The plaintiff noted that a link to the www.mlode-dupy.w.tertia.pl website combined with the recommendation of this site are a form of distribution of the image of a person depicted in photos available on Secunda’s website. The defendant took no steps to ascertain whether the plaintiff consented to distribute these photographs and it did not take any action to obtain such consent, the defendant’s conduct, involving the unauthorized dissemination of the image of the plaintiff on the porno website, violates her image rights and degrade her in the public due to the inclusion of her image in pornographic pictures.

Secunda claimed that it has no standing in this case because the infringer was a person who created a gallery available under www.mlode-dupy.w.tertia.pl link.

The District Court in Kraków in a judgment of 26 February 2004, case file I C 2060/03, ruled that Secunda infringed on plaintiff’s personal rights by publishing questioned images. The court said that Secunda was responsible because it had the opportunity to check the contents of the “Winning websites” section, and images contained therein. The editor was responsible for the compilation of recommendations and a link to www.mlode-dupy.w.tertia.pl website, and in this case it was Secunda.

Both parties appealed. The Appellate Court in Kraków in a judgment of 20 July 2004, case file I ACa 564/04, TPP 2004/3-4/155, rejected Secunda’s appeal and changed the lower Court’s decision on damages awarded.