American Broadcasting Companies, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014); see 17 U.S.C. § 106(4) (“[T]he owner of [a] a copyright … has the exclusive right to … perform the copyrighted work publicly.”).

See, e.g., Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974) (provider that carried broadcast signals into subscribers’ homes from hundreds of miles away considered a “viewer” and not a “performer” of the signals because the reception and rechanneling is, 408-09 “essentially a viewer function, irrespective of the distance between the broadcasting station and the ultimate viewer”); Fornightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 398-400 (1968) (system that carried copyrighted local TV signals into subscribers’ homes via antennas on hills above those cities does not “perform” the signals because they do not edit the programs, nor procure the programs to thereafter propagate them to the public; rather, the system falls “on the viewer’s side of the line” by using “amplifying equipment” similar to how a viewer provides the same equipment”).

See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), reh’g en banc denied, 722 F.3d 500 (2d Cir. 2013). In WNET, Thirteen, The court found that the defendant’s system, like the RS-DVR system in the controlling precedent, Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”) created unique, user-requested copies that were generated by their own individually rented antenna and transmitted only to the particular user that created them and, therefore, its performances were nonpublic. The court stated that Cablevision expressly rejected the argument, advanced again in this case, that the mere fact that a content provider is making a given work available to all of its subscribers results in a public performance. The appeals court reiterated that, looking at the “Transmit Clause” of the Copyright Act, if a transmission is “capable of being received by the public” the transmission is a public performance; if the potential audience of the transmission is only one subscriber, the transmission is not a public performance, and private transmissions to multiple parties should not be aggregated, except when private transmissions are generated from the same copy of the work. In Cablevision, a cable TV company’s remote storage digital video recorder (RS-DVR) system that would allow subscribers the option to record television programming on the company’s own servers for subsequent personal viewing does not amount to direct copyright infringement. The court ultimately granted summary judgment in favor of the defendant-cable company because the proposed RS-DVR did not directly infringe the plaintiff’s exclusive rights to reproduce and publicly perform their copyrighted works. As to claims of infringement of the exclusive right of public performance, the court concluded that the RS-DVR playback involved a nonpublic performance because the system would only make playback transmissions to one subscriber using a unique copy produced by that subscriber and, as such, the universe of people capable of receiving transmissions of a program was the single subscriber and could not be considered performances “to the public.” Compare WNET, Thirteen, 712 F.3d at 677; Hearst Stations Inc v. Aereo, Inc., 977 F. Supp. 2d 32 (D. Mass. 2013) (transmitting a performance to a single user via a single antenna is a private performance under the Copyright Act) with Fox Television Stations, Inc. v. Film On X LLC, 956 F. Supp. 2d 30 (D.D.C. 2013) (internet transmission TV service with technology materially identical to Aereo did infringe the public performance rights under the “Transmit Clause” because in making its technology to available to any member of the public, it performs it publicly under the Act, a right which is afforded to the copyright owner); Fox Television Stations Inc. v. BarryDriller Content Systems PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012) (internet retransmission TV service, akin to Aereo, likely infringes broadcaster’s exclusive right to make public transmissions of their copyrighted works; court issues preliminary injunction halting the service within the boundaries of the Ninth Circuit); see also Fox Broadcasting Co., Inc. v. Dish Network, LLC, 723 F.3d 1067 (9th Cir. 2013) (satellite television distributor using a DVR that allowed users to skip commercials aired during broadcast networks programming did not constitute direct or secondary copyright infringement). WPIX, Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012) (affirming preliminary injunction and holding that online live TV streaming service is not a “cable system” entitled to a compulsory license under § 111 of the Copyright Act because they provide nationwide—and arguably global —services).

743 F.3d 1258 (9th Cir. 2014).

766 F.3d 929 (9th Cir. 2014).

See also Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).

See also 17 U.S.C. § 106(4) (but for the existence of a robust license, the performer could prevent the author from exercising his exclusive right to show the work to the public).

Garcia v. Google, Inc., 771 F.3d 647 (9^th Cir. 2014) (granting rehearing).

741 F.3d 938 (9^th Cir. 2013).

A variety of courts have weighed in on the requisite mens rea in the context of criminal copyright infringement. See, e.g., Cheek v. United States, 498 U.S. 192 (1991) (a copyright is infringed willfully when the defendant intentionally violated a known legal duty); Screws v. United States, 325 U.S. 91 (1945) (a defendant can only be found guilty if he evinces a motive to violate that which the statute protects; something more is required than doing the act proscribed by the statute); United States v. Heilman, 614 F.2d 1133 (7^th Cir. 1980) (infringement of the copyright in the context of willfulness requires acts taken with a purpose to deprive the copyright holder of the interests protected by its copyright).

See U.S. v. Anderson, 741 F.3d 938; but see United States v. Liu, 731 F.3d 982 (9^thCir. 2013) (jury instruction hinting that a jury could convict a defendant of criminal copyright infringement without a finding that he knew his actions were unlawful was not harmless error; conviction was vacated and the case remanded). The Anderson court also noted that there was “overwhelming evidence that Anderson acted with the requisite knowledge that his actions were unlawful, including his admissions that he: (a) resorted to selling unauthorized software after realizing that he did not have sufficient resources to pursue a legitimate deal with Adobe; (b) had been informed by his customers that was he was doing was illegal, though this did not deter him, and (c) knew that his customers were not using the discs for backup purpose. Anderson, 741 F.3d at 948-49.

Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013).

Agence France Press v. Morel, 934 F. Supp. 2d 547 (S.D.N.Y. 2013).

In further proceedings, the court clarified its holding regarding statutory damages and ruled that the plaintiff was, at most, entitled to receive one award of statutory damages per work infringed in this action. The court held that the liability of an individual or group of individuals for the infringement of any single work could not be multiplied by the number of separate end-point infringers with whom that individual or group was jointly liable, and that a plaintiff seeking statutory damages for copyright infringement may not multiply the number of per-work awards available in an action by pursuing separate theories of individual liability against otherwise jointly liable defendants. See Agence France Press v. Morel, 934 F. Supp. 2d 584 (S.D.N.Y. 2013).

UMG Recordings, Inc. v. Augusto, 628 F.3d 1175 (9th Cir. 2011).

Luvdarts LLC v. AT&T Mobility LLC, 2013 710 F.3d 1068 (9th Cir. 2013).

In re Application of Cellco Partnership d/b/a Verizon Wireless, 663 F. Supp. 2d 363 (S.D.N.Y. 2009). See also United States v. American Society of Composers, Authors & Publishers, 599 F. Supp. 2d 415 (S.D.N.Y. 2009) (telecom company argued that its use of ASCAP music in previews to allow users to hear snippets before downloading ringtones was fair use and therefore, it does not owe ASCAP royalty payments for the previews; court found that the applicant’s use of previews was not transformative because, among other reasons, the music segments used in applicant’s previews were exact copies of ASCAP music and the previews, for the purpose of allowing its customers to sample a ringtone before purchasing it, could not fairly be described as “criticism, comment, news reporting, teaching . . . scholarship, or research”); United States v. ASCAP, 627 F.3d 64 (2d Cir. 2010) (appeals court affirmed lower court ruling that a download of a musical work does not constitute a public performance of that work, but vacated the district court’s assessment of fees for the blanket ASCAP licenses sought by the two Internet companies and remanded for further proceedings that would yield a royalty rate that reflects the varying nature of the companies’ music use); Kernal Records Oy v. Mosley, 794 F. Supp. 2d 1355 (S.D. Fla. 2011) (publishing a musical work on a website without restrictions in Australia was an act tantamount to global and simultaneous publication of the work, bringing the work within the definition of a “United States work” under § 101(1)(C) and subject to § 411(a)’s registration requirement).

A.V. v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009). See also Christen v. iParadigms LLC, 2010 WL 3063137 (E.D. Va. Aug. 4, 2010) (conversion claims based upon uploading of students’ papers to plagiarism service preempted by Copyright Act); Hollander v. Steinberg, 419 Fed. Appx. 44 (2d Cir. 2011) (summary order) (attorneys who attached copies of the plaintiff’s online essays in support of legal papers filed in two separate judicial proceedings were protected from copyright infringement by the fair use defense because the essays were submitted to evince the workings of the plaintiff’s state of mind and such non-commercial use could not realistically be viewed as negatively impacting the market for the essays) Northland Family Planning Clinic Inc. v. Center for Bio-Ethical Reform, 868 F. Supp. 2d 962 (C.D. Cal. 2012) (parody video that copied large portions of original material was deemed fair use); SOFA Entertainment, Inc. v. Dodger Productions, Inc., 709 F.3d 1273 (9th Cir. 2013) (use of 7-second clip of the Ed Sullivan Show in a musical about the Four Seasons to mark a historical point in the band’s career was fair use); but see Balsley v. LFP Inc., 691 F.3d 747 (6th Cir. 2012) (publication of old, racy images of local reporter without authorization for inclusion in an adult magazine is not fair use).

See also Scholz Design, Inc. v. Sard Custom Homes, LLC, 691 F.3d 182 (2d Cir. 2012) (architectural drawings are not required to contain sufficient detail to allow for construction in order to receive Copyright Act protection as a pictorial work; plaintiff’s claims derive from the general copyright law and not from the AWCPA, which has no relevance to the suit).

Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008).

Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005); see UMG Recording, Inc. v. Escape Media Group, Inc. No. 11 Civ. 8407, 2014 WL 5089743 (S.D.N.Y. 2014) (employees of P2P network found liable for direct, vicarious and contributory infringement, as well as active inducement. because they had explicitly directed all of their employees to download the company’s P2P software and then upload copyrighted music to it as a means of thereafter increasing scope and efficacy of the network to facilitate illegal downloads).

Authors Guild, Inc v. HathiTrust, 755 F.3d 87 (2d Cir. 2014). The HathiTrust digital library, unless the copyright holder permitted broader use, produced search results that show only the page numbers on which the search term is found, and the number of times the term appears on each page. Id. at 91. Moreover, the digital library does not display to the user any text of the copyrighted work, even in “snippet form.” Id.

Id. at 99. This “economic harm” factor only applies when the use of the work is not transformative, as such a use is per se not a substitute for the original work. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591 (1994) (“cognizable market harm” is limited to “market substitution”); NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2d Cir. 2004) (stating that the relevant inquiry for purposes of economic harm is whether the secondary use “usurps the market of the original work”); see also White v. West Pub. Corp., — F. Supp. 2d —, 2014 WL 3057885 (S.D.N.Y. 2014) (legal publishers that placed searchable versions of an attorney’s legal briefs did not infringe his copyrights because they made fair use of the works by transforming them into interactive legal research tools; Specifically, the publishers had reviewed, selected, converted, coded, linked and identified the documents in a way that “add[] something new, with a further purpose or different character” than the original briefs); Case C-117/13, Technische Universität Darmstadt v. Eugen Ulmer K.G., ECLI:EU:C:2014:2196 (Sept. 11, 2014) (in a case involving a nearly identical fact pattern to Hathi Trust, the highest court of Europe, the European Court of Justice, held that libraries have the right to digitize books for use on reading terminals without the consent of copyright holders.

See, e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 455, n.40 (1984) (“Making a copy of the copyrighted work for the convenience of a blind person is expressly identified by the House Committee report as an example of fair use[.]”; H.R. Rep. No. 94-1476, at 73 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5686 (noting that making copies accessible for blind persons posed a “special instance illustrating the application of the fair use doctrine”). The court stated that “the present day market for books accessible to the handicapped is so insignificant that it is common practice in the publishing industry for authors to forgo royalties that are generated through the sale of books manufactured for the blind.” Authors Guild, 755 F.3d at 103 (internal quotations omitted).

Elsevier Ltd. v. Chitika, Inc., 826 F. Supp. 2d 398 (D. Mass. 2011). See also Ark Promotions, Inc. v. Justin.tv, Inc, 904 F. Supp. 2d 541 (W.D.N.C. 2012) (plaintiff’s one sentence allegation that defendant provides detailed instructions on its website directing users how to stream live video over the internet through its website does not adequately support a plausible claim that defendant is liable for inducement of copyright infringement); Liberty Media Holdings, LLC v. Tabora, No. 12-2234 (S.D.N.Y. July 9, 2012) (negligence claim against individual who allegedly permitted his roommate to engage in file sharing via a shared internet connection is preempted by the Copyright Act; the imposition of liability on one who knowingly contributes to a direct infringement by another is already protected under the doctrine of contributory infringement).

Klein & Heuchan, Inc. v. CoStar Realty Information, Inc., 707 F. Supp. 2d 1287 (M.D. Fla. 2010).

Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124 (S.D.N.Y. 2009). See also Arista Records LLC v. Lime Group, 784 F. Supp. 2d 398 (S.D.N.Y. 2011) (file-sharing service is liable for inducement of copyright infringement for intentionally encouraging and assisting rampant direct infringement by its users; massive scale of infringement committed by LimeWire users, and its knowledge of the infringement of its customers, supports a finding that LW intended to induce infringement; interestingly, the court denied the plaintiffs’ motion for summary judgment on the contributory infringement claim stating that there existed a genuine issue of material fact as to whether LimeWire was “capable of substantial noninfringing uses” such that liability should not be imposed pursuant to the Sony-Betamax rule); Maverick Recording Co. v. Harper, 598 F.3d 193 (5th Cir. 2010) (17 U.S.C. §402(d) forecloses an innocent infringement defense for a music file-sharer liable for copyright infringement where copyright notices were placed on CDs of the plaintiffs’ works). But see David v. CBS Interactive Inc., No. 11-09437 (C.D. Cal. Feb. 19, 2013) (preliminary injunction against news and software download hub that published articles and videos about technological and legal issues surrounding file-sharing did not likely commit inducement of copyright infringement).

In certain cases, defendants have argued that a large award of statutory damages under the Copyright Act may be deemed to be punitive. In such cases, a court presumably has a duty to correct an unconstitutionally excessive verdict so that it conforms to the requirements of the due process clause, but in recent rulings, courts have declined to rule that large statutory damage awards under the Copyright Act was oppressive or unreasonable under Supreme Court precedent. See e.g., Capitol Records Inc. v. Thomas-Rasset, 692 F.3d 899 (8th Cir. 2012) (statutory damage award of $222,000 for willful infringement via music file sharing (i.e. $9,250 for each of the 24 works infringed) was not “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable,”, the lower court erred in holding that the Due Process Clause allowed statutory damages of only $54,000; court rejected the application of the Supreme Court’s punitive damages guideposts in the context of statutory damages awards); Sony BMG Music Entertainment, v. Tenenbaum, 660 F.3d 487 (1st Cir. 2011) (appeals court reversed the trial court’s reduction on constitutional grounds of the original $22,500 per infringed song statutory damage award and reinstated the original $675,000 award, ruling that the lower court erred by unnecessarily reaching Tenenbaum’s constitutional challenge to the award and bypassing the question of common law remittitur).

But see Disney Enterprises, Inc. v. Hotfile Corp., 798 F. Supp. 2d 1303 (S.D. Fla. 2011) (remote storage website was not liable for direct copyright infringement simply because it gave users access to copyrighted material posted by others because it took no direct, volitional steps to upload copyrighted material or otherwise violate the plaintiff’s rights; court refused to dismiss contributory claims based upon allegations that the website, through its business model, knowingly induced its users to infringe the plaintiffs’ copyright).

464 U.S. 417 (1984).

Corbis Corporation v. Starr, 2009 WL 2901308 (N.D. Ohio Sept. 2, 2009). See also Qassas v. Daylight Donut Flour Co., 2010 WL 2365472 (N.D. Okla. June 10, 2010) (website owner may be held liable for copyright infringement for copying a competitor’s online content even though a third party developed the defendant’s new website and the owner had no control over or decision-making authority concerning the content of the new website).

The Associated Press v. Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d 537 (S.D.N.Y. 2013); see also Dow Jones & Co., Inc. v. Real-Time Analysis and News, Ltd., No. 14-CV-131 (JMF)(GWG), 2014 WL 5002092 (S.D.N.Y. Oct. 7, 2014) (in a question of fresh impression, district court holds that a “reasonable royalty,” which in this instance refers to a fair licensing fee, and not the normal remedies such as lost profits or defendant’s wrongful gain, as the latter in the context of misappropriation of trade secrets for the theft of “hot news,” would be difficult to assess).

Barclays Capital Inc. v. TheFlyOnTheWall.com, 650 F.3d 876 (2d Cir. 2011). See also Agora Financial, LLC v. Samler, 725 F. Supp. 2d 291 (D. Md. 2010) (federal magistrate concludes “hot news” misappropriation claims are limited to claims in which the material at issue is factual information or material that is otherwise not protectable under the Copyright Act; while plaintiffs may be able to protect their “original” investment recommendations under federal copyright law, they cannot protect these recommendations under a “hot news” misappropriation theory). But see BanxCorp v. Costco Wholesale Corp., 723 F. Supp. 2d 596 (S.D.N.Y. 2010) (while the plaintiffs cannot seek copyright protection based upon the underlying raw financial data, database compilations and market research performance indices were sufficiently original under the Copyright Act because they do not contain simple mathematical averages, but are instead created through judgment being applied to disparate indicators; hot news misappropriation claim also survives dismissal, based upon allegations of the defendant’s “constant and continuous unauthorized daily reproduction and multimedia redistribution”).

The Scranton Times, LP v. Wilkes-Barre Publishing Co., 90 U.S.P.Q.2d 1161 (M.D. Pa. Mar. 6, 2009). In further proceedings, the court ruled that the plaintiff’s tortious interference, unfair competition, and unjust enrichment claims were preempted by the Copyright Act, but allowed the plaintiff’s breach of contract and conversion claims to go forward. See The Scranton Times, LP v. Wilkes-Barre Publishing Co., 2009 WL 3100963 (M.D. Pa. Sept. 23, 2009). See also Silver v. Lavandeira, 2009 WL 513031 (S.D.N.Y. Feb. 26, 2009) (competing gossip website that allegedly copied facts and news items from the plaintiff’s site did not likely commit copyright infringement because such facts and information were not protected by copyright and the defendant added his own distinctive tone making it a different expression); The Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454 (S.D.N.Y. 2009).

750 F.3d 1339 (Fed. Cir. 2014); see Oracle America, Inc. v. Google Inc., 872 F. Supp. 2d 974 (N.D. Cal. 2012) (“Copyrightability Decision”) (overturned decision).

Therefore, the notion that “Google replicated what was necessary to achieve a degree of interoperability with Java,” is an errant prism through which to scrutinize interoperability claims. Copyrightability Decision, 872 F. Supp. 2d at 1000.

Another circuit has defined source code as the “spelled-out programs that humans can read.” Lexmark Int’l, Inc v. Static Control Components, Inc., (387 F.3d 522).

Oracle America, Inc v. Google, Inc., 750 F.2d 1339 (Fed. Cir. 2014) (citing Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 698 F.3d 29 (1^st Cir. 2012)). At this point, the Federal Circuit enters into a tangential but nonetheless illuminating discussion of how the opening lines of Charles Dickens’ A Tale of Two Cities: “It was the best of times, it was the worst of times,” are “nothing but a string of short phrases.” Nonetheless, “no one could contend that this portion of Dickens’ works is unworthy of copyright protection because it can be broken into those shorter constituent components.” Oracle America, 750 F.3d at 1363.

Copyrightability Decision, 872 F. Supp. 2d at 976-77 (citing 17 U.S.C. § 102(b)). In coming to this conclusion, the District court had relied on Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1^st Cir. 1995), a case holding that a defendant who copied the menu command hierarchy and interface from a computer program designed to perform accounting functions electronically did not commit infringement because the command terms within the program were merely a method of operating the program itself. A number of other circuits have held that classifying a work as a “system” does not preclude copyright for the particular expression of that system. See, e.g., Am. Dental Ass’n v. Delta Dental Plans Ass’n, 126 F.3d 977 (7^th Cir. 1997) (“[W]ord-processing software [is not] a system just because it has a command structure for producing paragraphs.”); Toro Co. v. R & R Prods. Co., 787 F.2d 1208 (8^th Cir. 1986) (rejecting the argument that a parts numbering system is not copyrightable because it is a “system”) (internal quotations omitted).

750 F.3d at 1371. Therefore, the notion that “Google replicated what was necessary to achieve a degree of interoperability with Java,” is an errant prism through which to scrutinize interoperability claims. Copyrightability Decision, 872 F. Supp. 2d at 1000.

Apple, Inc. v. Psystar Corp., 658 F.3d 1150 (9th Cir. 2011).

Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010). See also Adobe Systems Inc. v. Hoops Enterprise LLC, 2012 WL 298732 (N.D. Cal. Feb. 1, 2012) (first sale doctrine is unavailable to eBay seller who resold OEM copies of Adobe software previously bundled with computer hardware distributed under a license that imposed significant transfer restrictions).

The first sale doctrine also arises in the sale of gray market goods. See e.g., Microsoft Co. v. Intrax Group Inc., 2008 WL 4500703 (N.D. Cal. Oct. 6, 2008) (first sale doctrine only applies to copies legally made in the United States, or copies made abroad if the copies are sold in the U.S. by the copyright owner or with its authority); Microsoft v. Big Boy, 589 F. Supp. 2d 1308 (S.D. Fla. 2008) (first sale defense not applicable where software in question was manufactured and distributed overseas). See also Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013) (first sale doctrine applies to copies of a copyrighted work lawfully made abroad and the statutory phrase “lawfully made under this title” did not impose a geographical limitation that prevents the doctrine from applying to foreign works made abroad with the copyright owner’s permission; at a policy level, the Court noted that a contrary ruling would cause an adverse result in the marketplace because reliance on the first sale doctrine is deeply embedded in the practices of booksellers, libraries, museums, and retailers).

The Compliance Source, Inc. v. GreenPoint Mortgage Funding, Inc., 624 F.3d 252 (5th Cir. 2010). See also Real View, LLC v. 20-20 Technologies, Inc., 811 F. Supp. 2d 553 (D. Mass. 2011) (court reduced a damage award against a company that illegally downloaded competitor’s software and used it to develop competing, non-infringing software to an award of $4,200, the price of a license, and rejected as speculative or improper the argument that the plaintiff should have recovered damages for lost profits and price erosion based upon the initial illegal download). But see IBM Corp. v. BGC Partners, Inc., 2013 WL 1775367 (S.D.N.Y. Apr. 25, 2013) (court refused to grant licensor summary judgment on contract and copyright claims based upon unauthorized use of licensed software due to material issues of fact concerning what license governed the dispute, aggravated by the fact that the copy of the “bespoke” license that the licensee contends is governing was lost).

R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262 (6th Cir. 2010).

Cincom Systems, Inc. v. Novelis Corp., 581 F.3d 431 (6th Cir. 2009). See also HyperQuest Inc. v. N’Site Solutions Inc., 632 F.3d 377 (7th Cir. 2011) (software license did not clearly delineate exclusivity over at least one strand of the bundle of rights under Section 101 of the Copyright Act and thus licensee did not have the statutory authority to sue for copyright infringement; the fact that the license uses the phrase “exclusive license” or its equivalent from time to time is a factor, but not dispositive since it is the substance of the agreement, not the labels that it uses, that determines the difference between an exclusive and non-exclusive software license); QAD Inc. v. Conagra Foods Inc., 2011 WL 4964914 (C.D. Cal. Oct. 18, 2011) (licensor’s dispute against company that acquired the original licensee allegedly in violation of software license’s ambiguous assignment clause may proceed to arbitration).

Safety Mgmt. Sys., Inc. v. Safety Software Ltd., 2010 WL 1837770 (S.D.N.Y. May 05, 2010).

The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2009).

The SCO Group, Inc. v. Novell, Inc., 750 F. Supp. 2d 1050 (D. Utah 2010), aff’d 439 Fed. Appx. 688 (10th Cir. 2011).

The Free Software Foundation, Inc. v. Cisco Systems, Inc., No. 08-10764 (S.D.N.Y. Complaint filed Dec. 11, 2008). See also Software Freedom Conservancy Inc. v. Best Buy Co., No. 09-10155 (S.D.N.Y. Complaint filed Dec. 14, 2009) (open source developer filed copyright infringement suit against various electronics retailers who allegedly distributed goods embedded with firmware that contained the plaintiff’s open source software without complying with GPLv2). In further proceedings, the court granted the plaintiff’s motion for a default judgment against an insolvent defendant-HDTV products maker who refused to participate in the litigation. See Software Freedom Conservancy Inc. v. Best Buy Co. Inc., No. 09-10155 (S.D.N.Y. July 27, 2010).

Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008).

Jacobsen v. Katzer, 609 F. Supp. 2d 925 (N.D. Cal. 2009).

Jacobsen v. Katzer, 2009 WL 4823021 (N.D. Cal. Dec. 10, 2009). Subsequently, the parties entered into settlement. The defendant will be subject to a permanent injunction, which among other things, prohibits the defendant from misusing the plaintiff’s software and outlines the stipulated judgment of $100,000 in favor of the plaintiff. See Jacobsen v. Katzer, No. 06-01905 (N.D. Cal. Settlement Agreement filed Feb 18, 2010).

Pub. L. No. 105-304, 112 Stat. 2860 (1998).

17 U.S.C. §512 (2003).

17 U.S.C. §512(a-d).

The “at the direction of the user” language in 17 U.S.C. § 512(c) is “clearly meant to cover more than mere electronic storage lockers.” UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9^th Cir. 2014). In that spirit, one federal court recently concluded that the fact that moderators had to approve infringing third party posts before such posts could become visible on a site does not disqualify the site from the safe harbor for infringement at the “direction of the user.” See Marvix Photographs LLC v. LiveJournal Inc., No. SACV 13-00517-CRC(JPRx) (S.D. Cal. Sept. 19, 2014).

Perfect 10, Inc. v. Amazon.com, Inc., 2009 WL 1334364 (C.D. Cal. May 12, 2009). See also Perfect 10 Inc. v. Google Inc., No. 04-9484 (C.D. Cal. July 26, 2010) (certain nonconforming DMCA notices not effective to provide notice of infringement, including notices sent to Google’s webmaster as opposed to its DMCA agent and hard drives and DVDs ineffectually cross-referenced to a cover letter and list of infringing works; however, the court found that some spreadsheets, containing both incomplete and complete identifications of infringing works could have been effective under the DMCA).

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).

MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928 (9th Cir. 2010). In a related copyright issue, the court held that the game users (and the plaintiff) could not claim any defenses under Section 117 of the Copyright Act as “owner” of a copy of software. Following its precedent in Vernor v. Autodesk, 621 F.3d 1102 (9th Cir. 2010), the appeals court ruled that game players were mere licensees of Blizzard’s game software because Blizzard reserved title in the software and granted players a non-exclusive, limited license with significant transfer and use provisions. See also Avaya Inc. v. Telecom Labs Inc., No. 06-2490 (D.N.J. Nov. 4, 2011) (unpublished) (court declined to impose a “nexus” requirement, finding that nothing in DMCA §1201 requires that there be a reasonable relationship between circumvention and copyright infringement; regardless of how a login/password combination is obtained, such “unauthorized use of a technological measure without the authority of the copyright owner” does not fall within the definition of circumvention and therefore does not constitute a violation of § 1201(a)(1)).

Viacom Int’l, Inc., v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). See also Obodai v. Demand Media Inc., 2012 WL 2189740 (S.D.N.Y. June 13, 2012), aff’d 522 Fed. Appx. 41 (2d Cir. 2013) (website that was not served with takedown notices but removed plaintiff’s copyrighted content after being served with a complaint deemed protected by DMCA safe harbor; court rejected plaintiff’s argument that site-traffic monitoring and third-party ads triggered alongside the infringing content could constitute control over the material).

See also Capitol Records, Inc. v. MP3tunes, LLC, –- F. Supp. 3d — (S.D.N.Y. 2014) (overturning jury verdict of liability on theories of red flag knowledge and willful blindness because defendant did not have specific knowledge, must less general knowledge, of infringing content on its website, therefore to impute liability would force the defendant to take commercially reasonable steps to research and identify other instances of infringing content).

See also Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. 2d 537 (S.D.N.Y. 2013) (when site employees have never viewed allegedly infringing videos posted on video-sharing site, the site could not be aware of facts or circumstances that would engender “red flag” knowledge of infringement, and therefore could avail itself of DMCA safe harbor with respect to these videos; however, videos with copyrighted material that contained comments from site employees or were “buried” or “liked” by site employees imputed “red flag” knowledge to the site).

See Viacom Int’l, Inc., v. YouTube, Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013).

Flava Works Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012).

UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081 (C.D. Cal. 2008).

UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp. 2d 1099 (C.D. Cal. 2009).

Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007).

UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013). See also IO Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 2008) (video sharing site that actively enforces its user policy, acts expeditiously to remove infringing material, and seeks to prevent the same infringing content from being re-posted qualifies for the DMCA 512(c) safe harbor; DMCA does not require service providers to track users in a particular way (e.g., verification of users’ IP addresses) or affirmatively police users for evidence of repeat infringement).

Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013).

Capitol Records, Inc. v. MP3Tunes, LLC, 821 F. Supp. 2d 627 (S.D.N.Y. 2011) (amended opinion). See also UMG Recordings Inc. v. Escape Media Group Inc., 107 A.D.3d 51 (N.Y. App. Div. 2013) (DMCA safe harbors do not provide a defense to service providers facing common law copyright infringement claims related to pre-1972 music recordings because Section 301(c) forbids the Copyright Act from “annull[ing]” or limit[ing]” the common-law rights and remedies of owners of such works).

Lenz v. Universal Music Corp., 572 F .Supp. 2d 1150 (N.D. Cal. 2008). But see Third Education Group, Inc. v. Phelps, 675 F. Supp. 2d 916 (E.D. Wis. 2009) (plaintiff failed to demonstrate that defendant lacked a good faith belief that he owned the copyright when he sent a DMCA takedown notice to the plaintiff, particularly since determining ownership of the website material in question required resolution of complex legal questions regarding state law). See also Amaretto Ranch Breedables LLC v. Ozimals Inc., No. 10-5696 (N.D. Cal. Apr. 22, 2011) (a claim under DMCA § 512(f) for filing false takedown notices with a service provider is not viable where no takedown of the copyrighted material occurs; a § 512(f) plaintiff’s damages must be proximately caused by the misrepresentation to the service provider and the service provider’s reliance on the misrepresentation). In further proceedings, the court found that interference with contract and other related claims and other state law claims based on allegedly false takedown notifications were preempted by the DMCA, which is the sole remedy for a recipient of such a notice. Amaretto Ranch Breedables LLC v. Ozimals Inc., 2011 WL 2690437 (N.D. Cal. July 8, 2011).

See Lenz v. Universal Music Corp., 2010 WL 702466 (N.D. Cal. Feb. 25. 2010).; see also Crossfit, Inc. v. Alvies, 2014 WL 251760 (N.D. Cal. Jan. 22, 2014) (knowingly sending a DMCA takedown notice referencing a violating trademark instead of a violating copyright could constitute a material misrepresentation sufficient to incur liability under 17 U.S.C. § 512(f)); Ouellette v. Viacom Int’l, Inc., 2012 WL 1435703 (D. Mont. April 25, 2012) (claim under 17 U.S.C. § 512(f) for wrongful DMCA takedown notice dismissed; liability for a misrepresentation under § 512(f) may be imposed only upon a showing of a copyright owner’s subjective bad faith, where the owner makes “a knowing misrepresentation,” and will not be imposed only upon “an unknowing mistake,” even if the copyright owner acted unreasonably in making the mistake); Tuteur v. Crosley-Corcoran, — F. Supp. 2d — (D. Mass. 2013) (no requirement in the DMCA that a notice-giver inform the service provider of an infringer’s possible affirmative defenses, only that she affirm her good faith belief that the copyrighted material is being used without her permission).

See Rossi v. Motion Picture Ass’n of Am. Inc., 391 F.3d 1000 (9th Cir. 2004).

Silvaco Data Systems v. Intel Corp., 184 Cal. App. 4th 210 (Cal. Ct. App. 2010).

Nationwide Mutual Insurance Co. v. Mortensen, 606 F.3d 22 (2d Cir. 2010). See also Tewari De-Ox Systems, Inc. v. Mountain States/Rosen, L.L.C., 637 F.3d 604 (5th Cir. 2011) (proprietary method was not a trade secret because the owner had previously disclosed it in a prior patent application); Scienton Technologies, Inc. v. Computer Associates Int’l Inc., 2013 WL 1856653 (E.D.N.Y. May 1, 2013) (plaintiffs’ purported trade secret –the idea or concept of combining certain program functionalities and not the source code or technical details regarding how those different programs would interact with one another–was not entitled to protection; court noted that the secrecy of plaintiffs’ “concept” would have necessarily been lost once the product was placed on the market). But see Decision Insights, Inc. v. Sentia Grp., Inc., 311 Fed. Appx. 586 (4th Cir. 2011) (software compilation of publicly-known algorithms that was not generally known or readily ascertainable by proper means could be trade secret).

Aqua Connect, Inc. v. Code Rebel, LLC, No. 11-5764 (C.D. Cal. Feb. 13, 2012).

Simplexgrinnell LP v. Integrated Systems & Power, Inc., 642 F. Supp. 2d 167 (S.D.N.Y. 2009). See also Shutterfly Inc. v. ForeverArts, Inc., 2012 WL 2911887 (N.D. Cal. July 13, 2012) (in a copyright and trade secret case involving misappropriation of proprietary source code by former employee for use in a competing venture in China, court issued TRO prohibiting defendant from destroying evidence). But see R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262 (6th Cir. 2010) (user interface product was not a trade secret because the owner did not take reasonable steps to maintain its secrecy; owner’s agreement with licensee did not contain any confidentiality provisions preventing third parties from viewing the interface, and that the agreement expressly contemplated that the licensee would use a third-party personal computer support firm to assist with support and to provide the terminal emulation software).

KnowledgePlex, Inc. v. Placebase, Inc., 2008 WL 5245484 (N.D. Cal. Dec. 17, 2008). See also Contour Design, Inc. v. Chance Mold Steel Co., 2010 WL 174315 (D. N.H. Jan. 14, 2010) (concept for a computer mouse design that was not yet perfected or manufactured could be a protectable trade secret). But see KEMA, Inc. v. Koperwhats, 96 U.S.P.Q.2d 1787 (N.D. Cal. 2010) (no misappropriation due to failure to undertake reasonable efforts to maintain the secrecy of the trade secret where programmer admitted that he provided the source code to defendant without any confidentiality agreement or other restriction).

Seaton v. TripAdvisor, LLC, 2012 WL 3637394 (E.D. Tenn. Aug. 22, 2012). See also Rahbar v. Batoon, 2012 WL 4883236 (Cal. Ct. App. Oct. 16, 2012) (unpublished) (former patient granted attorney’s fees after successful anti-SLAPP motion against health care provider’s defamation suit over online comments); Perez v. Dietz Development, LLC, 2012 WL 6761997 (Va. Dec. 28, 2012) (preliminary injunction ordering Yelp reviewer to edit negative posting about plaintiff-contractor and not post similar remarks on other sites was vacated since the plaintiff may seek an adequate remedy under law).

Pub. L. 111-223, codified at 28 U.S.C. §§ 4101-4105 (2010).

Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9. 2009). Beyond First Amendment protections, other legal privileges may act as a shield to a defamation action. See, e.g., Medcalf v. Walsh, 938 F. Supp. 2d 478 (S.D.N.Y. 2013) (under New York law, a communication from one spouse to another may not be deemed a publication for purposes of defamation, and case law does not reflect an exception for spousal communications made via email, even a corporate network where third parties might be capable of accessing the emails).

Too Much Media LLC v. Hale, 20 A.3d 364 (N.J. 2011). See also Obsidian Finance Group, LLC v. Cox, 2011 WL 5999334 (D. Or. Nov. 30, 2011) (self-proclaimed investigative blogger not entitled to protection under Oregon press shield law to protect the identity of her sources because she was not affiliated with any media outlet and the press shield defense is not available in civil defamation actions); but see The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries Inc., 999 A.2d 184 (N.H. 2010) (website that served an informative function and contributed to the flow of information to the public was entitled to protection under the state’s newsgathering privilege and trial court erred in not applying a balancing test to determine whether the plaintiff could overcome the newsgathering privilege in a civil suit where the press is a non-party to a defamation action; In re January 11, 2013, Subpoena by the Grand Jury of Union County New Jersey, No. 13-0001 (N.J. Super. Apr. 12, 2013) (government watchdog blogger that made posts regarding the apparent misuse of government funds is entitled to the press shield privilege because, among other things, she used journalistic methods to uncover newsworthy topics, despite not being a professional journalist that “consistently and exclusively” wrote newsworthy posts).

752 F.3d 990 (D.C. Cir. 2014).

See A.F. Holdings, LLC v. Does 1-1058, 286 F.R.D. 39 (D.D.C. 2012), vacated by, 752 F.3d 990 (D.C. Cir. 2014). Initially, the ISPs had refused to comply by invoking F.R.C.P. 45(d)(3)(A) which provides that a “district court must quash or modify a subpoena that … subjects a person to undue burden.”

A.F. Holdings, LLC, 752 F.3d at 992; see also Ingenuity 13 LLC v. John Doe, 2013 WL 1898633 (C.D. Cal. May 6, 2013) (describing the plaintiff’s attorney in A.F. Holdings, LLC as representing a firm that is a “porno-trolling collective”).

It based its decision in significant part on the holdings in Oppenheimer Fund, Inc v. Sanders, 437 U.S. 340 (1978). In the case, the court held that representative plaintiffs in a class action could not use discovery tools to secure from the defendant the names of the members of the plaintiff class. It concluded as such because the plaintiffs sought this information for notice of litigation, and not instead for a reason that had any bearing on the issues in the case. See id. at 352; see also id. at 352 n.17 (“[W]hen the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied.”).

Solers Inc. v. Doe, 977 A.2d 941 (D.C. 2009). But see Call of the Wild Movie, LLC v. Smith, 274 F.R.D. 334 (D.D.C. 2011) (First Amendment right of alleged file-sharers to remain anonymous must give way to the plaintiffs’ right to use the judicial process to pursue what appear to be meritorious copyright infringement claims).

See e.g., A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010) (subpoena to ISP seeking identity of the sender of an anonymous email quashed because plaintiff failed to establish prima facie case of defamation); Matter of Sandals Resorts Intl. Ltd. v Google Inc., 910 N.Y.S.2d 408 (N.Y. Sup. Ct. 2010) (unpublished) (plaintiff not entitled to discovery of the identity of anonymous emailer because the email in question contained protected assertions of opinion that were not defamatory, particularly since the emailer included links to factual materials that indicated that the message was meant to provoke discussion), aff’d Sandals Resorts Intl. Ltd. v Google, Inc., 86 A.D.3d 32 (N.Y. App. Div. 2011) (posted email critical of company practices in Jamaica held nonactionable opinion, an exercise in rhetoric meant to foment an examination of the company; “the anonymity of the e-mail makes it more likely that a reasonable reader would view its assertions with some skepticism and tend to treat its contents as opinion rather than as fact”); LeBlanc v Skinner, 103 A.D.3d 202 (N.Y. App. Div. 2012) (defamation claim based upon blog posting stating that the plaintiff was a “terrorist” was non-actionable hyperbole, since readers in the digital age give less credence to such online statements; however, statement that plaintiff was responsible for placing horse’s head in Town Supervisor’s pool was defamation per se); but see Deer Consumer Prods., Inc. v. Little, 938 N.Y.S.2d 767 (N.Y. Sup. Ct. 2012) (plaintiff permitted to conduct jurisdictional discovery, to be filed under seal, against anonymous Internet speaker where it has made a prima facie showing of the proposed defamation claim; plaintiff has also demonstrated that the knowledge of the defendant’s true identity is materially necessary to advance its defamation claim, as without such identifying information, plaintiff would not be able to properly carry its burden of proving the existence of personal jurisdiction).

Solers, Inc. v. Doe, No. 10-1523 (D.C. App. Jan. 12, 2012).

Christoff v. Nestle USA, Inc., 97 Cal. Rptr. 3d 798 (Cal. 2009).

Yeager v. Bowlin, 2010 WL 95242 (E.D. Cal. Jan. 6, 2010), aff’d 693 F. 3d 1076 (9th Cir. 2012). See also Alberghetti v. Corbis Corp., 713 F. Supp. 2d 971(C.D. Cal. 2010), aff’d 476 Fed. Appx. 154 (9th Cir. 2012) (an individual’s claims against photo licensing service for posting allegedly infringing images on its website begins to run from the time that the content was first posted online; the court found the plaintiff’s claims were time-barred under the single publication rule, rejecting the plaintiff’s argument that the online sale of each photo license under a standard license was a separate transaction that restarted the statute of limitations); Roberts v. McAfee Inc., 660 F.3d 1156 (9th Cir. 2011) (defamation claims considered time-barred by single publication rule; court rejects the plaintiff’s argument that a press release posted online is republished when the defendant fails to retract it after receiving notice of its falsity); In re Phila. Newspapers LLC, 2012 WL 3038578 (3d Cir. July 26, 2012) (linking to previously published material is not republication under the single publication rule; “though a link and reference may bring readers’ attention to the existence of an article, they do not republish the article”).

47 U.S.C. §230(e)(1)-(2), (4).

Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (amended opinion).

Id. According to the court, publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content. See also Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) (en banc) (“[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.”).

965 F. Supp. 2d 818 (E.D. Ky. 2013).

See 47 U.S.C. § 230(f)(3). The court also noted that the salient point for the purposes of determining whether CDA immunity applies is not whether the statement alongside the defamatory post was defamatory in and of itself, but whether the statement effectively adopted and ratified the content contained in the post. In this case, the statement was found to have ratified the content within the post, thereby excluding the defendant from CDA immunity. See also S.C. v. Dirty World, LLC, No. 11–CV–00392, 2012 WL 3335284 (W.D. Mo. Mar. 12, 2012) (agreeing with the discussion earlier in the footnote).

755 F.3d 398 (6^th Cir. 2014).

Id. at 413. The material contribution test involves analysis of whether the action of the operator “materially contributed to the alleged unlawfulness of the content” displayed on the website. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9^th Cir. 2008).

Hill v. Stubhub, Inc., 727 S.E.2d 550 (N.C. Ct. App. 2012). See also Porras v. Stubhub, Inc., 2013 WL 144045 (N.D. Cal. Jan. 11, 2013) (Stubhub not a “ticket seller” under California statute, but a virtual marketplace; defendant not liable for plaintiff’s damages for buying bogus ticket).

Milgram v. Orbitz Worldwide, LLC, No. 142-09 (N.J. Super. Ct. Aug. 26, 2010).

Blockowicz v. Williams, 675 F. Supp. 2d 912 (N.D. Ill. 2009). See also Bobolas v. Does 1-100, 2010 WL 3923880 (D. Ariz. Oct. 1, 2010); Raggi v. Las Vegas Metropolitan Police Dept., 2009 WL 653000 (D. Nev. Mar. 10, 2009) (CDA Section 230 immunizes a union for allegedly defamatory Web postings from its members on a union-operated bulletin board, despite its refusal to remove the postings); Giordano v. Romeo, 76 So. 3d 1100 (Fla. Dist. Ct. App. 2011) (CDA bars court from issuing an injunction against a non-party website operator that refused to comply with a poster’s demand to remove defamatory statements previously posted on the website); Karnaby v. Mckenzie, 2012 WL 2149457 (Conn. Super. Ct. May 10, 2012) (unpublished) (injunction forcing removal of post authored by non-identified anonymous web poster denied).

Nemet Chevrolet Ltd. v. ConsumerAffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009). See also Shiamili v. Real Estate Group of New York, Inc., 952 N.E.2d 1011 (N.Y. 2011) (website operator that chooses and reposts third-party content is protected by CDA immunity from defamation claims; the CDA “does not differentiate between ‘neutral’ and selective publishers” and “creating an open forum for third-parties to post content — including negative commentary — is at the core of what Section 230 protects”); Parisi v. Sinclair, 774 F. Supp. 2d 310 (D.D.C. 2011) (online booksellers entitled to CDA immunity for posting allegedly defamatory product descriptions about a self-published book sold on the site; however, the court, in dicta, commented that CDA immunity would not extend to physical book and e-book sales just because the underlying transactions took place on the Internet, since liability for sales would not treat the defendants as the “publisher or speaker” of third-party information); Reit v. Yelp!, Inc., 907 N.Y.S.2d 411 (N.Y. Sup. Ct. 2010) (website’s selection of the posts it maintains on its site can be considered the selection of material for publication, and accordingly, the website cannot be deemed an information content provider and is immune from liability for defamation under CDA Section 230; “That Yelp allegedly uses “bad” posts in its marketing strategy does not change the nature of the posted data”); Stevo Design Inc. v. SBR Marketing Ltd., 919 F. Supp. 2d 1112 (D. Nev. 2013) (website bulletin board entitled to CDA immunity from state law misappropriation claims because its sporadic editing of posts and its practice of awarding loyalty points for user posts did not make it a “developer” of content; though the defendant encouraged users to visit and interact with the site through its loyalty points system, its encouragement was not specifically directed at illegal publications).

Gibson v. Craigslist, Inc., 2009 WL 1704355 (S.D.N.Y. June 15, 2009). See also Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009) (CDA immunity protected a website from claims that the website facilitated prostitution through its “erotic services” category); Inman v. Technicolor USA, Inc., 2011 WL 5829024 (W.D. Pa. Nov. 18, 2011) (alleged sale of harmful vacuum tubes was facilitated by online communications on eBay’s website for which eBay may not be held liable under the CDA).

Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. 2009). See also Getachew v. Google Inc., 491 Fed. Appx. 923 (10^th Cir. 2012) (unpublished) (CDA provides immunity for search engine against claims that search results displayed negative items when an individual’s name was entered into the search box); Black v. Google Inc., 2010 WL 3222147 (N.D. Cal. Aug. 13, 2010), aff’d 457 Fed. Appx. 622 (9th Cir. 2011) (search engine granted CDA immunity for anonymous third-party content; court rejected plaintiff’s argument that an interactive computer service could be held liable merely because its programming facilitated the creation of the content at issue); Jurin v. Google, Inc., 695 F. Supp. 2d 1117 (E.D. Cal. 2010) (CDA Section 230 shields search engine from unfair competition and other tort liability for sale of advertising keywords using plaintiff’s mark since its Keyword Suggestion Tool merely suggests keywords to competing advertisers so they might refine their content—an editorial function—and as such does not render the search engine an “information content provider”); but see Doctor’s Associates, Inc. v. QIP Holders LLC, 2010 WL 669870 (D. Conn. Feb. 19, 2010) (sandwich chain that solicited, reviewed and posted user-submitted videos about its purported superiority to a competitor may not be protected by CDA immunity because there were material issues of fact concerning whether the defendant merely exercised editorial control over the videos or “actively participated in creating or developing the third-party content”).

Doe IX v. MySpace, Inc., 629 F. Supp. 2d 663 (E.D. Tex. 2009). See also Witkoff v. Topix, Inc., Case No. BC517897 (Cal. Super. Ct. May 14, 2014) (website hosting discussions of drug use which lead to a fatal overdose was immunized under Section 230 since its sole role was letting the discussion occur); Beckman v. Match.com, 2013 WL 2355512 (D. Nev. May 29, 2013) (online dating site immune from negligence claims for allowing plaintiff’s attacker to post a profile and otherwise failing to protect the plaintiff from criminal assault); Riggs v. MySpace Inc., 444 Fed. Appx. 986 (9th Cir. 2011) (unpublished) (social network protected by CDA Section 230 against negligence claims from deletion of the plaintiff’s account even though the website did not delete other profiles allegedly created by celebrity imposers); Doe v. SexSearch.com, 551 F.3d 412 (6th Cir. 2008) (contract and negligent claims against adult online dating site were dismissed because the user failed to allege that the site breached any contractual promise or committed a negligent act, and because the Terms and Conditions expressly disclaimed responsibility for verifying members’ ages and any other warranties; court declined to adopt the district court’s broad reading of CDA Section 230 immunity and instead decided the case on other state law grounds).

767 F.3d 894 (9^th Cir. 2014).

Id. California imposes a duty to warn a potential victim of third party harm when a person has a “special relationship to either the person whose conduct needs to be controlled or … to the foreseeable victim of that conduct.” See Tarasoff v. Regents of Univ. of California, 51 P.2d 334 (Cal. 1976), superseded by statute, Cal. Civ. Code § 43.92. Doe 14 argued that the defendant had a cognizable special relationship with her and that its failure to warn her of the rape scheme precipitated the incident in which she fell victim to it. These issues were not before the Ninth Circuit at the time, but these background details are important to understand the CDA-related holdings.

FTC. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009).

206 F.3d 980 (10th Cir. 2000).

Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (amended opinion). On remand, the district court denied the defendant’s further motion to dismiss, rejecting the defendant’s contention that the plaintiff failed to show the necessary detrimental reliance on the defendant’s promises to remove the unwanted false dating profiles. Barnes v. Yahoo!, Inc., 2009 WL 4823840 (D. Ore. Dec. 8, 2009). See also Scott P. v. Craigslist, Inc., No. 10-496687 (Cal. Super. Ct. June 2, 2010) (promissory estoppel claim based upon website’s alleged broken promise to remove offensive third-party content survives dismissal motion).

Holomaxx Technologies v. Microsoft Corp., 2011 WL 865278 (N.D. Cal. Mar. 11, 2011). The plaintiff subsequently filed an amended complaint, which the court dismissed, with prejudice. See Holomaxx v. Microsoft, 783 F. Supp. 2d 1097 (N.D. Cal. 2011) (court reiterated that CDA § 230(c)(2) allows an interactive service provider to establish standards of decency without risking liability for filtering decisions and that the “good faith” immunity is focused upon the provider’s subjective intent).

Zango Inc. v. Kaspersky Lab Inc., 568 F.3d 1169 (9th Cir. 2009). See also Smith v. Trusted Universal Standards in Electronic Transactions, Inc., 2011 WL 900096 (D.N.J. Mar. 15, 2011) (provider that aided other entities to restrict access to spam email granted immunity under Section 230(c)(2)(A)).

Craigslist, Inc. v. 3Taps, Inc., 942 F. Supp. 2d 962 (N.D. Cal. 2013).

Facebook, Inc. v. Power Ventures, Inc., 2009 WL 1299698 (N.D. Cal. May 11, 2009). In further proceedings the court found denied the plaintiff’s motion on the pleadings on its state law computer fraud claim, finding that the defendant did not act “without permission” within the meaning of Section 502 of the statute when Facebook account holders utilized the defendant’s website to access and manipulate their user content on Facebook, even if such action violated Facebook’s Terms of Use. However, the court ruled that to the extent that the plaintiff can prove that in doing so, the defendant Power circumvented Facebook’s technical barriers, the defendant may be held liable for violation of Section 502. Facebook, Inc. v. Power Ventures, Inc., 2010 WL 3291750 (N.D. Cal. July 20, 2010).

507 F. Supp. 2d 1096 (C.D. Cal. 2007).

Facebook, Inc. v. Power Ventures, Inc., 844 F. Supp. 2d 1025 (N.D. Cal. 2012).

Sambreel Holdings LLC v. Facebook, Inc., 906 F. Supp. 2d 1070 (S.D. Cal. 2012).

Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D. N.J. June 16, 2009) (unpublished). See also Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. Mar. 12, 2013) (employer that took control of and changed passwords to ex-employee’s LinkedIn account following termination and used it to promote the new CEO’s credentials committed misappropriation of identity and publicity in using the plaintiff’s name without consent for commercial or advertising purposes; however, the court awarded $0 damages because the plaintiff failed to establish any damages with reasonable certainty or any concrete business losses caused by the temporary loss of her LinkedIn account).

Yath v. Fairview Clinics, M.P., 767 N.W.2d 34 (Minn. Ct. App. 2009). See also Arenas v. Shed Media, 881 F. Supp. 2d 1181 (C.D. Cal. 2011) (basketball player not likely to succeed on right of publicity claims against reality TV show due to the availability of a “public interest” defense; plaintiff had made aspects of his personal life a matter of public concern based on his series of posts to his Twitter account). But see Lalonde v. Lalonde, 2011 WL 832465 (Ky. App. Feb 25, 2011) (under ordinary circumstances, “[t]here is nothing within the law that requires permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires permission when she [is] “tagged” or identified as a person in those pictures.”).

Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010). See also Thompson v. Autoliv ASP, Inc., 2012 WL 2342928 (D. Nev. June 20, 2012) (plaintiff ordered, with certain restrictions, to upload five years of social media materials onto external hard drive for inspection; plaintiff’s public Facebook profile provided evidence of the plaintiff’s post-accident activities and mental state and were relevant to the claims and defenses in the case). But see McCann v. Harleysville Insurance Co. of New York, 78 A.D.3d 1524 (N.Y. App. Div., 2010) (appellate court affirmed the denial of the defendant’s motion to compel a signed authorization for access to the plaintiff’s social network account because defendant “failed to establish a factual predicate with respect to the relevancy of the evidence” and essentially sought permission to conduct “a fishing expedition into plaintiff’s Facebook account”); Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012) (court declined to allow the defendant to view the plaintiff’s entire Facebook account or all posted photographs, finding that public postings and surveillance photographs that showed the plaintiff holding a toy dog and pushing a shopping cart did not belie the plaintiff’s claims of injury and were not a sufficient predicate showing that the private Facebook material would be reasonably calculated to lead to the discovery of admissible evidence); Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. 2012) (court denies motion to compel social media postings relating to emotional events or reactions as overly vague, but allows discovery into postings between plaintiff and fellow employees that referenced her employment or the ongoing litigation).

The Ass’n of the Bar of the City of New York, Comm. on Professional Ethics, “Obtaining Evidence From Social Networking Websites,” Formal Opinion 2010-2 (Sept. 2010). See also Oregon State Bar, Formal Opinion No. 2013-189 (Feb. 2013) (lawyer may access publicly available information on a social media site; similarly, a lawyer may send a friend request to access non-public information if the person is not represented by counsel in that matter and no actual representation of disinterest is made by the lawyer; a lawyer may not engage in deception designed to shield the lawyer’s identity from the person when making a friend request unless it involves a covert investigation of unlawful activit); NYCLA Committee on Professional Ethics, Formal Opinion No. 743 (May 18, 2011) (a lawyer may search a prospective juror’s and sitting juror’s social networking profile, provided there is no contact or communication with the prospective or sitting juror and the lawyer does not seek to “friend” jurors, or subscribe to their Twitter accounts, or otherwise contact them; if a lawyer discovers juror misconduct, he or she must promptly bring such misconduct to the attention of the court, under N.Y. Rules of Professional Conduct 3.5(d)); San Diego County Bar Assoc., Legal Ethics Opinion No. 2011-2 (May 24, 2011) (rules of ethics bar an attorney from making an ex parte friend request to a represented party because an attorney’s communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication; moreover, an attorney may not send a friend request to an unrepresented witnesses without disclosing the purpose of the request); New York State Bar Ass’n, Comm. on Professional Ethics, Op. 843 (Sept. 10, 2010) (lawyer representing a client in pending litigation may access the public pages of another party’s social networking website for the purpose of obtaining possible impeachment material for use in the litigation).

A federal appellate court has held that even a suspended corporation, as an unincorporated association, can sue based on federal common law trademark rights under the Lanham Act. See Southern California Darts Ass’n v. Zaffina, 762 F.3d 921 (9^th Cir. 2014). What is actually eligible for trademark protection continues to produce interesting results in all jurisdictions. See, e.g., New York Pizzeria, Inc. v. Syal, –- F. Supp. 3d ––, 2014 WL 5343523 (S.D. Tex. 2014) (the flavor of a company’s pizza sauces cannot be trademarked because the flavor of the food affects its quality and therefore is a functional element of the product); In re Datapipe, Inc., TTAB No. 85173828 (July 7, 2014) (the mark “your cloud” cannot be registered because it is merely descriptive of the personalized data storage and cloud computing services offered under the mark; based on the meanings of “your” and “cloud,” the designation “your cloud” does not “evoke a unique commercial impression,” but was rather a situation in which the individual words merely retain their descriptive meanings); see also Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc., 736 F.3d 1239 (9^th Cir. 2014) (a demonstration of irreparable harm is required to grant a preliminary injunction in a trademark infringement suit under the Lanham Act).

Tre Milano, LLC v. Amazon.Com, Inc., 2012 WL 3594380 (Cal. Ct. App. Aug. 22, 2012) (unpublished).

Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93 (2d Cir. 2010).

Ascentive, LLC v. Opinion Corp., 842 F. Supp. 2d 450 (E.D.N.Y. 2011). See also Dwyer Instruments, Inc. v. Sensocon, Inc., 873 F. Supp. 2d 1015 (N.D. Ind. 2012) (court rejects plaintiff’s initial interest confusion claim because plaintiff failed to present evidence to suggest that, even if the defendant intended to increase its Internet traffic through search results for the plaintiff’s product, any such purpose was successful achieved or any consumer confusion resulted).

See also Cintas Corp. v. Unite Here, 601 F. Supp. 2d 571 (S.D.N.Y. 2009) (union that operated critical websites not liable for trademark infringement or unfair competition because there was no likelihood of confusion among users that the websites were affiliated with the company, given the transparent disdain of the text and the prominent disclaimers on the site).

Louis Vuitton Malletier SA v. Akanoc Solutions, Inc., 658 F.3d 936 (9th Cir. 2011).

Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93 (2d Cir. 2010). On remand, the district court dismissed the plaintiff’s false advertising claim, finding that there was no extrinsic evidence indicating that the challenged advertisements were misleading or confusing. Tiffany (NJ) Inc. v. eBay, Inc., 2010 WL 3733894 (S.D.N.Y. Sept. 13, 2010). See also Louis Vuitton Malletier v. The Flea Market, Inc., 2009 WL 1625946 (N.D. Cal. June 10, 2009) (a property owner may not be liable for contributory trademark infringement if it only leases property to a separate and distinct entity, which in turn operates a flea market and rents space to a vendor, which in turn infringes trademarks); Sellify Inc. v. Amazon.com, Inc., 2010 WL 4455830 (S.D.N.Y. Nov. 4, 2010) (contributory trademark infringement claims dismissed because there was no evidence that Amazon.com had particularized knowledge of, or direct control over, its affiliate’s disparaging, keyword-triggered ads and when Amazon gained knowledge of the ads, it acted promptly to disable the affiliate’s account). But see Gucci America, Inc. v. Frontline Processing Corp., 721 F. Supp. 2d 228 (S.D.N.Y. 2010) (famous apparel maker alleged sufficient allegations of contributory trademark infringement against a credit card processing service provider who allegedly induced trademark infringement, and against similar providers that allegedly exerted sufficient control over the infringing transactions and knowingly provided services to a counterfeiter).

Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067 (10th Cir. 2009).

Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011). See also CollegeSource, Inc. v. AcademyOne, Inc., 2012 WL 5269213 (E.D. Pa. Oct. 25, 2012) (no trademark infringement for keyword advertisements that clearly delineated from search results and do not use the plaintiff’s trademark in the advertisement text); College Network Inc. v. Moore Educational Publishers, Inc., 378 Fed. Appx. 403 (5th Cir. 2010) (unpublished) (appeals court affirmed the legal sufficiency of a jury verdict which found that although the plaintiff possessed a valid trademark, the defendant did not infringe it by using it as a search-engine keyword for sponsored advertising and the evidence did not compel a finding of likelihood of confusion); AK Metals LLC v. Norman Industrial Materials Inc., 2013 WL 417323 (S.D. Cal. Jan. 31, 2013) (competitor did not likely commit trademark infringement for purchasing keyword ads based upon the plaintiff’s trademark with the header “Ads related to Escondido Metal Supply”; court stressed that the plaintiff failed to meet its burden to show the likelihood of confusion for its preliminary injunction request because the ads in question were clearly separated from the search results and were labeled to minimize confusion); Multi Time Machine, Inc. v. Amazon.com, 926 F. Supp. 2d 1130 (C.D. Cal. 2013) (online retailer that does not carry plaintiff’s product but presents a clearly marked list of search results for competing brands when a user enters the plaintiff’s trademarked product name into an internal search engine did not commit trademark infringement because users were not confused as to the source of the products displayed in the list of search results); but see Binder v. Disability Group Inc., 772 F. Supp. 2d 1172 (C.D. Cal. 2011) (a law firm’s purchase of a competitor’s trademark for use in keyword advertising constitutes a use in commerce under the Lanham Act and trademark infringement based upon a finding of likelihood of confusion, with enhanced damages due to the defendant’s willful infringement).

Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144 (4th Cir. 2012).

Jurin v. Google Inc., 2010 WL 3521955 (E.D. Cal. Sept. 8, 2010).

Jurin v. Google, Inc., 2012 WL 5011007 (E.D. Cal. Oct. 17, 2012). See also Ison v. Google, No. 10-163032 (Cal. Super. Jan. 22, 2013) (sale of individual’s name as keyword is not common law trademark infringement because plaintiff presented no evidence that her name-related marks acquired any secondary meaning); Home Decor Center, Inc. v. Google, Inc., No. 12-05706 (C.D. Cal. May 9, 2013) (search engine’s sale of plaintiff’s trademark for use in keyword advertising by a competitor not infringement because plaintiff’s trademark was generic; related state law claims based upon automated tool that included the trademark in keyword ads was alternatively barred by CDA Section 230).

Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009).

414 F.3d 400 (2d Cir. 2005).

737 F.3d 546 (9^th Cir. 2013).

According to the Petroliam Nasional court, the legislative history of the Act showed that it intended to codify the protection given to registrars by the Ninth Circuit in the case of Lockheed Martin Corp v. Network Solutions, Inc., 194 F.3d 980 (9th Cir. 1999), a case that considered secondary liability for registrars for trademark infringement under the Lanham Act. See also S. Rep. 106-140 at 11 (“The bill, as amended, also promotes the continued ease and efficiency users of the current registration system enjoy by codifying current case law limiting the secondary liability of domain name registrars and registries.”).

Contributory liability has been applied to trademark infringement lawsuits under the Lanham Act, as discussed supra. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994) (noting that although there is no general presumption of secondary liability, courts can infer such a cause of action when it appears Congress intended to incorporate it into a statute. As the context and legislative history indicate, the Lanham Act is believed to have codified the existing common law of trademarks. See Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (“Traditional trademark infringement law is part of a broader law of unfair competition that has its sources in English common law, and was largely codified in the Trademark Act of 1946 (Lanham Act.)”, superseded by statute on other grounds, Federal Trademark Dilution Act of 1996, 109 Stat. 985-986, as recognized in Levi Strauss & Co v. Abercrombie & Fitch Trading Co., 633 F.3d 1158 (9^th Cir. 2011).

Toyota Motor Sales, U.S.A. Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010). But see DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213 (9th Cir. 2010) (even if a domain name was put up innocently and used properly for years, a person is liable for cybersquatting if he subsequently uses the domain name with a bad faith intent to profit from the protected mark by holding the domain name for ransom; appeals court affirmed a jury verdict finding ex-employee who used a domain name as leverage to get his ex-employer to pay him the disputed commissions liable for cybersquatting).

Solid Host NL v. NameCheap Inc., 652 F. Supp. 2d 1092 (C.D. Cal. 2009). See also Transamerica Corp. v. Moniker Online Services LLC, 672 F. Supp. 2d 1353 (S.D. Fla. 2009) (trademark holder may proceed with ACPA claim against registrar based upon allegations that the registrar provided services to domain name registrants for infringing domain names and was part of a scheme to profit from their misuse; the court noted that while a registrar is generally not liable under the ACPA, such immunity applied only when the registrar was acting as a registrar); Louis Vuitton Malletier S.A. v. 100Wholesale.com, No. 12-21778 (S.D. Fla. Amended Preliminary Injunction Nov. 30, 2012) (mark holder brought suit against a host of cybersquatters, not under the UDRP or under the in rem provisions of the ACPA, but as an action based upon counterfeiting actions of the domain name registrants in infringing the plaintiff’s mark; injunction bars further infringement and transfers domain name registration to the plaintiff’s attorney and allows plaintiff to obtain identities of registrants from proxy services).

Balsam v. Tucows Inc., 2009 WL 3463923 (N.D. Cal. Oct. 23, 2009), aff’d 627 F.3d 1158 (9th Cir. 2010).

Office Depot Inc. v. Zuccarini, 596 F.3d 696 (9th Cir. 2010).

Southern Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1325 (11th Cir. 2009); see also Foreword Magazine, Inc. v. Overdrive, Inc., 2011 WL 5169384 (W.D. Mich. Oct. 31, 2011) (evidence of solicitation for payment of alleging infringing domain name admissible when claim was not yet disputed, but discussions over payment between defendant’s attorney and plaintiff after cease and desist letter was sent were protected by Fed. R. Evid. 408); but see Newport News Holding Co v. Virtual City Vision, Inc., 650 F.3d 423 (4th Cir. 2011) (when defendant abandoned its purpose of providing a city-based information website that was previously found legitimate in a UDRP proceeding and reformatted the site to focus on women’s fashions in competition with the plaintiff-mark holder supported a finding of bad faith under the ACPA).

134 S. Ct. 2473, 2488 (2014). In rejecting the government’s argument that a search of all data stored on a cell phone is “materially indistinguishable” from searches of physical items, the majority opinion responded that this is like “saying a ride on a horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.” Id.

Riley, 134 S. Ct. at 2484-85. In Chimel v. California, 395 U.S. 752 (1969), the court formulated the warrantless “search incident to arrest doctrine” in which a police officer is permitted to search the person arrested in “order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.” Id. at 762-63. This doctrine also considers it “entirely reasonable” for the officer to “search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” Id. This search is limited to the area within the immediate control of the arrestee. Id.

Riley v. California, 134 S. Ct. 2473, 2486 (2014) (citing Chimel, 395 U.S. at 763-64). The petitioner did concede that officers without a warrant could have seized and secured his cell phone to prevent destruction of evidence. Id. at 2486 (citing Illinois v. McArthur, 531 U.S. 326, 331-33 (2001)). However, this concern evaporates once the officers secure the phone, as the arrestee is no longer able to delete incriminating data. The respondent argued that this information could nonetheless be deleted either by remote wiping and data encryption. Id. The court found these rationales unavailing insofar as they referred to the actions of third parties that have occurred in a small number of isolated instances, at best. Id. at 2486 (citing a number of briefs in support of petitioners).

18 U.S.C. § 2511(2)(g)(i).

746 F.3d 920 (9th Cir. 2013), cert. denied, 134 S. Ct. 2877 (2014). This iteration of the Ninth Circuit opinion came after the grant of a petition to rehear the original Ninth Circuit opinion. See Joffe v. Google, Inc., 729 F.3d 1262 (9^th Cir. 2013).

In re Google, Inc. Privacy Policy Litigation, 2012 WL 6738343 (N.D. Cal. Dec. 28, 2012).

Pirozzi v. Apple Inc., 913 F. Supp. 2d 840 (N.D. Cal. 2012).

Patco Constr. Co., Inc. v. People’s United Bank, 684 F. 3d 197 (1st Cir. 2012) see also Experi-Metal, Inc. v. Comerica Bank, 2011 WL 2433383 (E.D. Mich. June 13, 2011) (court finds a genuine issue of material fact as to whether the defendant bank accepted in “good faith” fraudulent wire transfers initiated by unknown phishers in the plaintiff’s name); Chavez v. Mercantil Commercebank N.A, 701 F.3d 896 (11th Cir. 2012) (bank could not rely on Article 4A safe harbor for account holder’s loss from fraudulent in-person transaction because the agreed-upon security procedure did not specify what the bank would do to verify a payment order, and did not even require a signature comparison, so it was not in fact a “security procedure” under the UCC).

Keller v. Electronic Arts, Inc., 2010 WL 530108 (N.D. Cal. Feb. 8, 2010); but see The University of Alabama Board of Trustees v. New Life Art, Inc., 683 F.3d 1266 (11th Cir. 2012) (artist’s First Amendment interests clearly outweigh whatever consumer confusion that might exist concerning his paintings depicting University of Alabama football games; Lanham Act claims over the sale of paintings, prints and calendars that include the University’s football crimson and white uniforms are dismissed); Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) (use of a former college football player’s image in a NCAA football videogame was not transformative and the game maker was not entitled to summary judgment on the plaintiff’s right of publicity claim; the various digitized sights and sounds in the video game’s digital recreation of college football and the users’ ability to alter the digital avatar did not alter or transform the use of the plaintiff’s identity in a significant way); Habush v. Cannon, 2013 WI App 34, 828 N.W.2d 876 (attorneys right of publicity claims against a competing law firm that purchased their last names as keywords was dismissed because the invisible use of purchased keywords for competitive advertising was not a “use” of a name for advertising purposes within the meaning of the Wisconsin privacy statute).

Hayes v. SpectorSoft Corp., 2009 WL 3713284 (E.D. Tenn. Nov. 3, 2009); see also Kirch v. Embarq Management, 702 F.3d 1245 (10th Cir. 2012) (ISP that authorized NebuAd, an online advertising company, to conduct technology tests on internet traffic for directing online advertising is not liable under ECPA because the statute does not allow for civil aiding and abetting liability and regardless, the ISP’s access was not an “interception” since it was in the ordinary course of its core business as an ISP transmitting data over its equipment); Luis v. Zang, 2013 WL 811816 (S.D. Ohio Mar. 5, 2013) (court dismissed plaintiff’s claims against software maker for ECPA violations where an individual purchased and installed the keylogging software that allowed unauthorized access to the plaintiff’s communications; the language of the statute did not contemplate imposing civil liability on software manufacturers and distributers for the activities of third parties in intercepting electronic communication); but see Klumb v. Goan, 884 F. Supp. 2d 644 (E.D. Tenn. 2012) (“interception” occurs when spyware automatically routes a copy of an email, which is sent through the internet, back through the internet to a third party’s email address when the intended recipient opens the email for the first time).

Zheng v. Yahoo! Inc., 2009 WL 4430297 (N.D. Cal. Dec. 2, 2009). But see Suzlon Energy Ltd. v. Sridhar, 2011 WL 4537843 (9^th Cir. Oct. 3, 2011) (the protections of the ECPA extend to the contents of communications of foreign citizens; however, “the Court does not address here whether the ECPA applies to documents stored or acts occurring outside of the United States).

Quon v. Arch Wireless Operating Co., Inc., 529 F. 3d 892 (9^th Cir. 2008).

City of Ontario, California v. Quon, 130 S.Ct. 2619 (2010).

Boring v. Google Inc., 2010 WL 318281 (3rd Cir. Jan. 28, 2010).

10 F. Supp. 3d 602 (D.N.J. 2014).

According to the FTC, these breaches led to the compromise of more than 619,000 consumer payment card account numbers, numbers that were exported to a domain registered in Russia. The affected consumers also suffered more than $10.6 million in fraud loss as a result of the breach.

See Brown & Williamson, 529 U.S. 120 (2000) (noting that it was clear that Congress intended to exclude tobacco products from the FDA’s jurisdiction). The court contrasted this illustration of Congressional intent with the fact that all of the statutes dealing with data privacy, e.g., the FCRA, GLBA, COPPA, and HIPPA, actually complemented, if not granted, the authority of the FTC to regulate under the unfairness prong of the Act.

See FTC v. Wyndham Worldwide Corp., No. 2:13-cv-01887-ES-JAD (D.N.J. June 23, 2014). The relevant statute for interlocutory review is 29 U.S.C. § 1292(b); see also Litgo, NJ Inc v. Martin, 2011 WL 1134676 (D.N.J. Mar. 25, 2011) (“The burden is on the movant to demonstrate that all three requirements are met.”).

The controlling questions of law sufficient to trigger an interlocutory appeal were: (1) whether the FTC can bring an unfairness claims involving data security under Section of the FTC Act and (2)whether the FTC must formally promulgate regulations before bringing its unfairness claim under Section 5 of the FTC Act.

In re ScanScout, Inc., FTC File No. 1023185 (Settlement announced Oct. 8, 2011). See also United States v. Rental Research Services, Inc., No. 09-00524 (D. Minn. settlement announced Mar. 5, 2009) (consumer reporting agency that failed to properly screen prospective customers and, as a result, sold multiple credit reports to identity thieves, settled FTC charges that it violated the Fair Credit Reporting Act); In re Genica Corp., FTC File No. 082 3113 (settlement announcement Feb. 5, 2009) (online computer seller that collected sensitive information from consumers and allegedly failed to take basic security measures settled FTC charges); United States v. Central Florida Investments, Inc., No. 09-104 (M.D. Fla. Jan. 20, 2009) (company that called consumers whose phone numbers were on the Do Not Call Registry without consent or an “established business relationship” settled FTC charges that it violated the Do Not Call Registry provisions).

In re Blue Cross Blue Shield of Tennessee (HHS Settlement announced Mar. 13, 2012).

United States v. W3 Innovations, LLC, No. 11-03958 (N.D. Cal. Consent Decree Aug. 12, 2011). See also United States v. Path, Inc., No. 13-0448 (N.D. Cal. settlement announced Feb. 1, 2013) (app operator agreed to settle FTC charges that it deceived users by collecting personal information from their mobile address books without consent and that it illegally collected personal information from children without their parents’ consent; settlement required operator to pay a civil fine, establish a comprehensive privacy program and obtain independent privacy assessments every other year for the next 20 years).

18 U.S.C. §1030 et seq.

748 F.3d 525 (3d Cir. 2014). Auernheimer was also charged with conspiring to violate the CFAA in furtherance of a state crime under 18 U.S.C. § 1030 (c)(2)(B). He was accused of violating N.J. Stat. Ann. § 2C:20-31(a) which proscribes accessing a computer or computer system in excess of authorization that “discloses or causes to be disclosed any data … or personal identifying information.” Such charge was dismissed on grounds of improper venue, as discussed infra.

See also United States v. Willis, 476 F.3d 1121 (10th Cir. 2007) (delineating the CFAA elements). Further, the court noted the distinction between “essential conduct” elements from “circumstance element[s]” in the context of conspiracy charges. See United States v. Rodriguez-Moreno, 526 U.S. 275 (1999).

The court noted that “[a]lthough this appeal raises a number of complex and novel issues that are of great public importance in our increasingly interconnected age, we find it necessary to reach only one that has been fundamental since our country’s founding: venue. 748 F.3d at 532; see also United States v. Cabrales, 524 U.S. 1 (1998) (noting that the Constitution “twice safeguards the defendant’s venue right”).

United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc). See also WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012) (CFAA fails to provide a remedy for misappropriation of trade secrets or violation of a use policy where authorization has not been rescinded (citing Nosal); based on the ordinary meaning of “authorization,” an employee is authorized to access a computer when his employer approves or sanctions his admission to that computer and acts “without authorization” when he gains admission to a computer without approval; similarly, an employee “exceeds authorized access” when he has approval to access a computer, but uses his access to obtain or alter information that falls outside the bounds of his approved access; neither of these definitions extends to the improper use of information validly accessed).

597 F.3d 263 (5^th Cir. 2010).

Id. at 271-72. The court cited to United States v. Phillips, a case in which the same court concluded that “without authorization” in the context of the CFAA is “typically analyzed” with respect to the “scope of a user’s authorization to access a protected computer on the basis of the expected norms of intended use or the nature of the relationship established between the computer user.” 477 F.3d 215 (5^th Cir. 2007).

United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). See also United States v. Aleynikov, 2010 WL 3489383 (S.D.N.Y. Sept. 03, 2010) (government’s argument that defendant, who was authorized to access his employer’s trading system source code, violated the criminal provisions of the CFAA by misappropriating the source code was rejected), reversed on other grounds, 676 F.3d 71 (2d Cir. 2012) (conviction under federal EEA overturned because, among other things, the wrongful uploading of his employer’s proprietary source code did not implicate a system that was “produced for” or “placed in” interstate or foreign commerce); United States v. Zhang, 2012 WL 1932843 (N.D. Cal. May 29, 2012) (applying the Ninth Circuit’s holding in Nosal, departing employee who misappropriated confidential information in violation of nondisclosure agreement did not exceed authorized access and was not guilty of CFAA charges; defendant convicted for theft of trade secrets under federal law).

Craigslist Inc v. 3Tapas Inc, 964 F. Supp. 2d 1178 (N.D. Cal. 2013).

In order to prevent the defendant from accessing the site, Craigslist had configured its website to block IP addresses associated with it. In response, the defendant had continued to access Craigslist by using different IP addresses and proxy servers, thereby in part necessitating the decision by Craigslist to litigate.

Craiglist, 2013 WL 4447520, at *5. The defendant also argued that Craiglist was labeling an access restriction what was in actuality a use restriction. Only the latter implicates the issues discussed in Nosul concerning the criminalization or restriction of user internet freedom based on policies that said user likely has minimal knowledge of the existence of at all. The court disagreed in noting that, according to the facts of the case, Craiglist was issuing a blanket restriction on access for defendant, a restriction not subject to caveats or carve outs depending on the type of use defendant wished to undertake. Specifically, the court stated that the defendant in the case had one unequivocal restriction on its conduct: do not access the website. See also Wentworth-Douglass Hosp. v. Young & Novis Prof’l Ass’n, No. 10–CV–120–SM, 2012 WL 2522963, at *4 (D. N.H. June 29, 2012) (“[S]imply denominating limitations as access restrictions does not convert what is otherwise a use policy into an access restriction.”) (internal quotations omitted).

Cassetica Software, Inc. v. Computer Sciences Corp., 2009 WL 1703015 (N.D. Ill. June 18, 2009).

See also Flynn v. Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP, 2011 WL 2847712 (D. Nev. July 15, 2011) (aiding and abetting civil liability does not exist under §1030).

LVRC Holdings, LLC v Brekka, 581 F.3d 1127 (9th Cir. 2009). See also ReMedPar Inc. v. AllParts Medical LLC, 683 F. Supp. 2d 605 (M.D. Tenn. 2010) (CFAA does not extend to situations where the employee’s access was technically authorized but the particular use of the information was not; also, the employer’s “loss” at issue (i.e., the misappropriation of trade secret information) as well as the costs incurred by the employer in its efforts to seek redress for those acts and retain new employees are not the type of losses covered by the statute because they are unrelated to any interruption in computer service); Orbit One Communications, Inc. v. Numerex Corp., 692 F. Supp. 2d 373 (S.D.N.Y. 2010) (departing employees had unfettered access to employer’s computers prior to leaving the company and thus plaintiff-employer failed to advance any evidence that the departing employees accessed the plaintiff s computer system without authorization or exceeded their authorized access in violation of the CFAA); Oce North America Inc. v. MCS Services Inc., 748 F.Supp.2d 481 (D. Md. 2010) (ex-employee who allegedly copied printer diagnostic software from his ex-employer and used it during his work for a competitor did not access the software “without authorization” under the CFAA; CFAA claims against the employee’s new employer were also dismissed because the plaintiff did not allege that the defendant accessed any “protected computer” without authorization or in excess of that authorization to obtain the plaintiffs software); Advanced Aerofoil Technologies AG v. Todaro, 2013 WL 410873 (S.D.N.Y. Jan. 30, 2013) (“because there is no allegation that [the plaintiff-employer] revoked Defendants’ unlimited access to its system, Plaintiffs cannot state a cognizable claim under the CFAA”); JBCHoldings NY, LLC v. Pakter, 2013 WL 1149061 (S.D.N.Y. Mar. 20, 2013) (employee’s misuse of an employer’s proprietary data does not violate the CFAA where the information was obtained from a computer to which the employee was permitted access).

440 F.3d 418 (7th Cir. 2006).

TelQuest Int’l Corp. v. Dedicated Business Systems, Inc., 2009 WL 3234226 (D. N.J. Sept. 30, 2009). See also Catapult Communications Corp. v. Foster, 2010 WL 3023501 (N.D. Ill. July 30, 2010) (alleged losses in the form of expenses incurred from conducting forensic analysis on defendant’s computer are not compensable losses under the CFAA, without any evidence that plaintiffs’ computers were damaged by defendant’s alleged unauthorized access); General Scientific Corp. v. Sheervision, Inc., 2011 WL 3880489 (E.D. Mich. Sept. 2, 2011) (losses under the CFAA are limited to costs incurred and profits lost as a direct result of interrupted computer service; the CFAA’s damage requirement is not concerned with sales lost through the use of the information accessed); Schatzki v. Weiser Capital Management LLC, 2012 WL 2568973 (S.D.N.Y. July 3, 2012) (plaintiffs’ claim inadequate to meet the definition of damages and losses under the CFAA; the complaint does not allege that the defendant, a former business partner, destroyed or impaired the plaintiff’s proprietary data, nor does it make any specific allegation as to the cost of identifying, securing or remedying the alleged damage caused by the defendant’s access).

Joseph Oat Holdings Inc. v. RCM Digesters Inc., 2009 WL 3334868 (D. N.J. Oct. 14, 2009).

Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, Pub L. No. 108-187, codified at 15 U.S.C. §7701.

Facebook, Inc. v. Maxbounty, Inc., 2011 WL 1120046 (N.D. Cal. Mar. 28, 2011).

Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009). See also Asis Internet Services v. Azoogle.com, Inc., 2009 WL 4841119 (9^th Cir. Dec. 2, 2009) (unpublished) (mere cost of ordinary filtering and carrying spam over plaintiff’s facilities does not constitute a harm as required by the CAN-SPAM Act; plaintiff did not suffered a harm within the meaning of the statute and lacked standing.), further proceedings at Asis Internet Servs. v. Optin Global, Inc., 2010 WL 2035327 (N.D. Cal. May 19, 2010) (defendant awarded attorney’s fees in the amount of $806,978.84); RJ Production Co. v. Nestle USA, Inc., 2010 WL 1506914 (D.D.C. Apr. 15, 2010) (digital media outsourcing and consulting firm that made no allegations that it was an Internet access service that suffered any network harms lacked standing under the CAN-SPAM Act); but see Zoobuh Inc. v. Better Broadcasting LLC, 2013 WL 2407669 (D. Utah May 31, 2013) (bona fide online service that was adversely affected by spam had standing under the CAN-SPAM Act; in granting default judgment against the defendant, the court found false header violations based upon the defendant’s use of a proxy service that displayed generic “From” names such that recipients could not readily trace back the spam email to the actual sender, and the court found Required Content violations because basic opt-out information was only displayed in a remotely hosted image, which was not likely to appear on the recipient’s screen or otherwise be noticeable to the ordinary consumer).

Ferguson v. Active Response Group, 2009 WL 3229301 (9th Cir. Oct. 8, 2009) (unpublished). See also Haselton v. Quicken Loans Inc., 2010 WL 1180353 (W.D. Wash. Mar. 23, 2010) (website host that attempted to grow a spam business and did not use any e-mail filtering programs was not bona fide IAS provider and accordingly lacked standing to pursue a claim under the CAN-SPAM Act; in addition, the plaintiff did not show it was “adversely affected” by any alleged violation of the CAN-SPAM Act since it suffered harm, if at all, by its own failure to implement spam reducing measures and its actions to actively seek out such communications).

768 F.3d 871 (9^th Cir. 2014).

Id. (citing Moser v. FCC, 46 F.3d 970 (9^th Cir. 1995)). Moser affirmed the notion that the government may impose reasonable restrictions (in this instance, via the TCPA) on the time, place, or manner of protected speech as long as the restrictions were not a reference to the content of the speech, were narrowly tailored and left ample alternative channels of communications. See also Ward v. Rock Against Racism, 491 U.S. 781 (1989); Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288 (1984).

Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009). See also In re Jiffy Lube International, Inc., Text Spam Litigation, 2012 WL 762888 (N.D. Cal. Mar. 9, 2012) (advertiser not permitted to avoid TCPA liability merely because it hired a different firm to send text message advertisements to its customers); Hurst v. Mauger, 2013 WL 1686842 (N.D. Ill. Apr. 16, 2013) (e-commerce service provider and payment processor not liable under TCPA for seller’s spam text messages; the fact that provider earned a commission from the sale of the seller’s products did not conclusively establish that the messages were sent “on behalf of” the provider, a fact bolstered by anti-spam provisions in the agreement between the provider and seller that cut against the suggestion that the provider played any role in the sending of the messages). But see Thomas v. Taco Bell Corp., 2012 WL 3047351 (C.D. Cal. June 25, 2012) (a party can be held liable under the TCPA directly if it personally “makes” a call in the method proscribed by the statute, or vicariously, such as, if it was in an agency relationship with the party that sent the text message; plaintiff failed to present any evidence that defendant directed or supervised the manner and means of the text message campaign conducted by an association of its franchisees).

Abbas v. Selling Source, LLC, 2009 WL 4884471 (N.D. Ill. Dec. 14, 2009); but see Ryabyshchuck v. Citibank N.A., 2012 WL 5379143 (S.D. Cal. Oct. 30, 2012) (text message confirming opt-out request held non-actionable under the TCPA; “such simple, confirmatory response to plaintiff-initiated contact can hardly be termed an invasion of privacy under the TCPA); Ibey v. Taco Bell Corp., 2012 WL 2401972 (S.D. Cal. June 18, 2012) (advertiser’s single, confirmatory text message in response to an opt-out request from plaintiff, who voluntarily had provided his phone number by sending the initial text message, does not violate the TCPA).

Stern v. Bluestone, 2009 NY Slip Op 04740 (N.Y. June 11, 2009). See also Holmes v. Back Doctors, Ltd, 2009 WL 3425961 (S.D. Ill. Oct. 21, 2009) (faxed newsletter that contained bona fide medical information that changed each month and was sent to specific recipients on a regular schedule does not constitute an “advertisement” under the TCPA; while the faxes contained some advertising material, “it is worth noting that the TCPA actually requires the sender of a fax to include its contact information in the fax…and the Court sees no reason why [defendant’s] compliance with the statute should become…the linchpin for finding that [defendant’s] faxes constitute advertising”); Holtzman v. Turza, 2010 WL 3076258 (N.D. Ill. Aug. 3, 2010) (faxed newsletters that contained editorial and promotional content that were ghostwritten and transmitted on attorney’s behalf as part of a paid marketing campaign were deemed unsolicited advertisements under the TCPA), further proceedings at 2011 WL 3876943 (N.D. Ill. Aug. 29, 2011) (plaintiff granted summary judgment, with the court awarding $4,215,000 in damages, $500 in statutory damages for each of the 8,430 times faxes successfully sent to the class members).

Burdge v. Association Health Care Mgmt., 2009 WL 414595 (S.D. Ohio Feb. 18, 2009). See also Dobbin v. Wells Fargo Auto Finance, Inc., 10-268 (N.D. Ill. June 14, 2011) (recipients of cell phone calls failed to establish a genuine issue of fact regarding whether manually dialed calls made from a bank call center desk phone were made “using” equipment with the capacity to autodial within the meaning of the TCPA since such desk phones could be used independently of the predictive dialing technology employed by the bank); CE Design, Ltd. v. Prism Business Media, Inc., 2010 WL 2104272 (7th Cir. May 27, 2010) (the “established business relationship exception” to the TCPA’s junk fax prohibitions applies to both business and residential customers).

See e.g., Nieman v. VersusLaw, Inc., 512 Fed. Appx. 635 (7th Cir. Mar. 2013) (privacy and right of publicity claims against legal search websites that linked to court documents regarding a prior lawsuit in the plaintiff’s name were barred by the First Amendment).

See e.g., Doe v. Prosecutor, Marion County, Indiana, 2013 WL 238735 (7^th Cir. Jan. 23, 2013) (Indiana statute that prohibited most registered sex offenders from using social network websites and instant messaging services held unconstitutional because it was not narrowly tailored to serve the state’s interest and broadly prohibited protected speech rather than specifically targeting the evil of improper communications to minors).

See e.g., In re Appelbaum, 2013 WL 286230 (4^th Cir. Jan. 25, 2013) (no First Amendment right to access orders issued under SCA, 18 U.S.C. § 2703(d), at the pre-grand jury phase of the ongoing Wikileaks criminal investigation since there is a lack of First Amendment right to access such documents and the common law right to access such documents is outweighed by countervailing government interests); People v Harris, 36 Misc 3d 868 (N.Y. Crim. Ct. Sept. 11, 2012) (court refuses to quash district attorney’s subpoena to Twitter to obtain subscriber information and tweets from protester; court found no expectation of privacy in public tweets and allowed release of non-content information under the SCA).

FreeLife Int’l Inc. v. American Educational Music Publications, Inc., 2009 WL 3241795 (D. Ariz. Oct. 1, 2009).

Estavillo v. Sony Computer Entertainment, 2009 WL 3072887 (N.D. Cal., Sept. 22, 2009). See also Stern v. Sony Corp., No. 09-7710 (C.D. Cal. Feb. 8, 2010) (“To the extent Plaintiff is suing Sony as a manufacturer of video games, and the provider of online services, Sony is not a “place of public accommodation” and is therefore not liable for violating Title III of the ADA”).

Richerson v. Beckon, 2009 WL 1975436 (9th Cir. June 16, 2009) (unpublished). See also Yoder v. University of Louisville, 2012 WL 1078819 (W.D. Ky. Mar. 30, 2012) (nursing school that expelled student for making social media posting about a patient’s birth did not violate her First Amendment rights; the school had a legitimate pedagogical purpose in requiring students to sign a confidentiality policy and the student “cannot now complain that she had a First Amendment right to publish on the internet the information she agreed not to reveal”), aff’d 2013 WL 1976515 (6th Cir. May 15, 2013).

Stengle v. Office of Dispute Resolution, 2009 WL 1138119 (M.D. Pa. Apr. 27, 2009). See also In re: Tenure Hearing of Jennifer O’Brien, 2013 WL 132508 (N.J. Super. Ct. App. Div. Jan. 11, 2013) (ALJ properly terminated teacher who wrote offensive Facebook posts about her students; court rejected First Amendment defense and agreed that comments were not matters of public concern and even if they were, her views were outweighed by the district’s need to operate its schools efficiently); Zellner v. Herrick, 639 F.3d 371 (7th Cir. 2011) (teacher dismissal for violating computer use policy against viewing adult materials was warranted and unrelated to his outside union activities); Palleschi v. Cassano, 102 AD3d 603 (N.Y. App. 1st Dept. 2013) (911 operator who photographed the computer screen showing the information surrounding an apparently humorous call and posted it on Facebook was properly terminated). But see Love v. Rehfus, 946 N.E.2d 1 (Ind. 2011) (firefighter was improperly terminated for sending a private email supporting a local political candidate to a small group of citizens because the email was constitutionally protected speech and there was little evidence suggesting the speech caused or had the potential to cause disruption or harm to the Fire Department’s operations); Rubino v. City of New York, 2013 WL 1876235 (N.Y. App. Div., 1st Dept. May 7, 2013) (public school teacher’s termination for tasteless Facebook posting about her students posted within her network of friends was not warranted where the petitioner had a long and otherwise unblemished employment history and expressed remorse).

O.Z. v. Board of Trustees of Long Beach Unified School Dist., 2008 WL 4396895 (C.D. Cal. Sept. 9, 2008). See also Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011) (student suspension over creation of MySpace page dedicated to ridiculing a fellow student did not violate the plaintiff’s free speech rights because it was foreseeable that such conduct would reach the school via computers and smartphones and create a foreseeable substantial disruption there); D.J.M. v. Hannibal Public School District #60, 647 F.3d 754 (8^th Cir. 2011) (suspension upheld where student sent violent threats over instant messenger program from his home); Harris v. Pontotoc County School Dist., 635 F.3d 685 (5th Cir. 2011) (school did not violate student’s due process rights in suspending for causing a denial of service attack against the school network); Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011) (school officials acted reasonably and deserved qualified immunity for prohibiting a student from running for Senior Class Secretary because of offensive off-campus blog posts that pertained to a school event); but see J.S. v. Blue Mountain School Dist., 650 F.3d 915 (3d Cir. 2011) (en banc) (school that suspended student for creating a lewd MySpace profile of the principal violated student’s First Amendment rights because the facts simply do not support the conclusion that the School District could have reasonably forecasted a substantial disruption of or material interference with the school as a result of fake social media profile created off-campus); Layshock v. Hermitage School Dist., 650 F.3d 205 (3^rd Cir. 2011) (en banc) (student’s suspension for creating fictitious, offensive social media profile of school official not justified under exceptions that allow punishment for off-campus behaviors); R.S. v. Minnewaska Area School Dist., 2012 WL 3870868 (D.Minn. Sept. 6, 2012) (First Amendment and privacy claims against school may proceed based upon search of student’s Facebook account after a posting that was not truly threatening or disruptive to the school environment).

134 S. Ct. 1749 (2014). In the case, since “exceptional” is not defined in the governing Patent Act, the Supreme Court construed it “in accordance with [its] ordinary meaning.” See Sebelius v. Cloer, 133 S. Ct. 1886 (2013). It then listed a series of dictionary or previous case definitions that all centered around the words unusual, rare, not ordinary, uncommon, or special.

For the principal case espousing this test, see Brooks Furniture Mfg., Inc v. Dutailier Int’l, 393 F.3d 1378 (Fed. Cir. 2005). The Brooks Furniture case also held that “[a]bsent misconduct in conduct of the litigation or in securing the patent,” attorneys’ fees “may be imposed against the patentee only if both (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless.” The Federal Circuit thereafter clarified that litigation is objectively baseless only if it is “so unreasonable that no reasonable litigant could believe it would succeed.” See iLOR, LLC v. Google, Inc., 631 F.3d 1372 (Fed. Cir. 2011). Likewise, litigation is brought in “subjective bad faith” only if the plaintiff “actually know[s] that it is objectively baseless.” Id. at 1377; see also Halo Electronics, Inc. v. Pule Electronics, Inc., 769 F.3d 1397 (Fed. Cir. 2014) (noting a change in the burden of proof for attorneys’ fee shifting in patent cases).

See Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) (refusing to construe a similar fee-shifting statute to require proof of entitlement of fees by clear and convincing evidence); Bene v. Jeantet, 129 U.S. 683 (1889) (noting that patent infringement litigation has always been governed by a preponderance of the evidence standard).

TransCore, LP v. Electronic Transaction Consultants Corp., 563 F.3d 1271 (Fed. Cir. 2009).

Wisconsin Alumni Research Found. v. Intel Corp., 2009 WL 3003835 (W.D. Wis. Sept. 17, 2009).

Quanta Computer, Inc. v. LG Electronics, Inc., 128 S. Ct. 2109 (2008).

Leahy-Smith America Invents Act, Pub.L. 112-29, 125 Stat. 284 (2011).

Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012). See also Assoc. for Molecular Pathology v. Myriad Genetics, Inc., 2013 WL 2631062 (U.S. June 13, 2013) (naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but composite “cDNA” is patent eligible because it is not naturally occurring).

134 S. Ct. 2120 (2014).

Id. (citing Biosig Instruments, Inc. v. Nautilus, Inc., 715 F.3d 891 (Fed. Cir. 2013). This Supreme Court decision also abrogated a number of previous Federal Circuit cases on this topic. See, e.g., Hearing Components, Inc v. Shure Inc., 600 F.3d 1357 (Fed. Cir. 2010); Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342 (Fed. Cir. 2005); Exxon Research and Engineering Co. v. U.S., 265 F.3d 1371 (Fed. Cir. 2001).

Biosig Instruments, Inc., 134 S. Ct. at 2130 (emphasis in original); see also Warner–Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17 (1997) (if a test for definiteness cannot be at least “probative of the essential inquiry,” it will fail).

134 S. Ct. 2347 (2014).

Id. at 2349. The patents at issue in the case claimed: (1) a method for exchanging financial obligations, (2) a computer system configured to carry out the method for exchanging obligations, and (3) a computer-readable medium containing program code for performing the method of exchanging obligations.

Alice Corp., 134 S. Ct., at 2355. The court cited to the framework established in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ____, 132 S. Ct. 1289 (2012). That test involves a two-step process for determining whether patent claims that refer to laws of nature, natural phenomena, or abstract ideas include patent-eligible applications of these concepts. First, the court must determine whether the claims at issue are directed to one of those patent-ineligible concepts. 132 S.Ct. at 1296-97. Second, the court will consider the elements of each claim both individually and as an “ordered combination” to determine whether “additional elements transform the nature of the claim” into a patent-eligible application. Id. at 1297, 1298.

see Mayo, 132 S. Ct. at 1294 (noting that transforming an abstract idea into a patent-eligible application requires more than “simply stat[ing] the [abstract idea] while adding the words ‘apply it.’”); Parker v. Flook, 437 U.S. 584, 593 (1978) (observing that if a patent application could claim any principle of the sciences by reciting a computer system designed to implement the claim, such a result would make the determination of patent eligibility “depend on the draftsman’s art).

772 F.3d 709 (Fed. Cir. 2014). The overturned decision was Ultramercial, Inc. v. Hulu, Inc., 722 F.3d 1335 (Fed. Cir. 2013); but see Ancora Technologies, Inc., 744 F.3d 732 (Fed. Cir. 2014) (software method patent that prevented unauthorized software use by checking whether the software is operating within a license and stopping the program or taking other remedial action if it was not is patentable, and does not suffer from indefiniteness, as its use of the terms “volatile memory” and “nonvolatile memory” have a meaning that is “clear settled and objective in content”).

722 F.3d at 713. As discussed above, the test first espoused in Alice Corp. requires that a court confronted with patent applications (1) “determine whether the claims at issue are directed to one of those patent-ineligible concepts” and then (2) if the claims are found to be direct to one of the patent ineligible concepts, the court must thereafter determine “whether the claims contain an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Ultramercial, 772 F.3d at 715 (citing Alice Corp. Pty. Ltd. v. CLS Bank Intern., 134 S. Ct. 2347, 2355 (2014)) (internal quotations omitted).

Bilski v. Kappos, 130 S.Ct. 3218 (2010).

In Re Bilski, 545 F.3d. 943 (Fed. Cir. 2008). Regarding the Federal Circuit’s State Street [State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F. 3d 1368, 1373 (1998)] test, which the Federal Circuit repudiated in its Bilski opinion, the Supreme Court’s majority opinion in Bilski neither explicitly endorsed nor rejected it, writing that “nothing in today’s opinion should be read as endorsing interpretations of §101 that the Court of Appeals for the Federal Circuit has used in the past. See, e.g., State Street, 149 F. 3d, at 1373….” Bilski, 130 S.Ct. at 3231. However, the two concurring opinions (which were signed on by five Justices) explicitly rejected the State Street “useful, concrete and tangible result test.” For example, Justice Stevens wrote that: “[I]t would be a grave mistake to assume that anything with a ‘useful, concrete and tangible result,’ may be patented.” Id. at 3232, n. 1.

It should be noted that Justice Stevens’s concurring opinion, which was joined by three other Justices, would have found methods of doing business to be unpatentable: “In the absence of any clear guidance from Congress, we have only limited textual, historical, and functional clues on which to rely. Those clues all point toward the same conclusion: that petitioners’ claim is not a “process” within the meaning of §101 because methods of doing business are not, in themselves, covered by the statute. In my view, acknowledging as much would be a far more sensible and restrained way to resolve this case.”.

See Gottschalk v. Benson, 409 U. S. 63 (1972); Parker v. Flook, 437 U. S. 584 (1978); Diamond v. Diehr, 450 U. S. 175 (1981).

See, e.g., Swift v. Zynga Game Network, Inc., 805 F.Supp.2d 904 (N.D. Cal. 2011) (finding formation of a valid contract where the software in question involved a “modified clickwrap” process in which the terms of service were not visible on the page but were accessible via a hyperlink); Fteja v. Facebook, Inc., 841 F.Supp.2d 829 (S.D.N.Y. 2012) (same); Vernon v. Quest Comm’s Int’l, Inc., 857 F.Supp.2d 1135 (D. Colo. 2012) (while the provider undoubtedly could have offered more “user friendly” access to the subscriber agreement, the facts demonstrate that plaintiffs had reasonable notice and access to the terms and conditions of the arbitration clause and agreed to the terms via a valid clickwrap agreement).

763 F.3d 1171; see also 9 U.S.C. § 1 et seq. (requiring federal district courts to stay judicial proceedings and compel arbitration claims covered by a written and enforcable arbitration agreement).

Nguyen, 763 F.3d at 1177 (citing Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002)).

Asch Webhosting Inc. v. Adelphia Business Solutions Investment LLC, 2010 WL 258784 (3d Cir. Jan. 25, 2010) (non-precedential). See also Duffy v. The Ticketreserve Inc., 2010 WL 2681045 (N.D. Ill. July 6, 2010) (most contract claims against an online sporting ticket options marketplace based upon fraudulent third-party tickets were dismissed, with leave to amend; the court enforced the limitations of liability and broad release in the online user agreement); but see Rottner v. AVG Technologies, 2013 WL 1857076 (D. Mass. May 3, 2013) (disclaimers contained in EULA for downloadable software may effectively disclaim implied warranties, as permitted under UCC Article 2, but cannot disclaim express warranty claims based upon statements made in advertising copy touting the software’s functionality).

Surplus.com, Inc. v. Oracle Corp., 2010 WL 5419075 (N.D. Ill. Dec. 23, 2010). But see Digital Ally, Inc. v. Z3 Technology, LLC, 2010 WL 3974674 (D. Kan. Sept. 30, 2010) (software license agreement does not involve transfer of title and so was not a sale of goods for UCC Article 2 purposes under Nebraska law).

In re Zappos.com, Inc., 2012 WL 4466660 (D. Nev. Sept. 27, 2012). See also Knutson v. Sirius XM Radio, 771 F.3d (9^th Cir. 2014) (arbritration provision in browsewrap agreement nonbinding since a reasonable person would not believe that purchasing a vehicle from Toyota would also bind him to any contract with Sirius XM, particularly because the Sirius XM service was believed to be complimentary and the purchaser never received any documents from Sirius XM); Schnabel v. Trilegiant Corp., 2012 WL 3871366 (2d Cir. Sept. 7, 2012) (email sent after user signed up for third-party marketing program following an online purchase did not provide sufficient notice to the plaintiffs of an arbitration provision, and the plaintiffs could not have assented to it solely as a result of their failure to cancel their enrollment in the defendants’ service); but see Hancock v. AT&T, Inc., 2012 WL 6132070 (10th Cir. Dec. 11, 2012) (communications company practice of presenting terms for TV/voice service via a clickwrap agreement on its technician’s laptop during the installation process and thereafter offering a separate clickwrap agreement presented on users’ computers for internet services is enforceable and offers users an adequate opportunity to manifest assent to the terms; court enforced forum selection and arbitration clauses in those agreements, finding no decision which prohibits a provider from offering separate electronic agreements for different services); Swift v. Zynga Game Network, 805 F. Supp. 2d 904 (N.D. Cal. 2011) (finding formation of a valid contract where the software in question involved a “modified clickwrap” process in which the terms of service were not visible on the page but were accessible via a hyperlink).

Defontes v. Dell, 984 A.2d 1061 (R.I. 2009).

AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). See also Coneff v. AT&T, 2012 WL 887598 (9^th Cir. Mar. 16, 2012) (a narrow, fact-based state-law rule for voiding class action waivers under Washington law does not fall outside of Concepcion; the FAA preempts the Washington state law invalidating the class-action waiver).

Anderson v. Bell, 2010 WL 2485545 (Utah June 22, 2010). See also Rosas v. Macy’s Inc., 2012 WL 3656274 (C.D. Cal. Aug. 24, 2012) (employee’s electronic signatures on acknowledgment forms formed valid and enforceable agreement to arbitrate; employee admitted receiving employee handbook and signing the Acknowledgment Form, such that his failure to opt out of company arbitration program within set time period constituted assent to the arbitration agreement).

952 F.Supp. 1119 (E.D. Pa. 1997).

465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); but see Trachtenberg v. Failedmessiah.com, –- F. Supp. 2d ––, 2014 WL 4286154 (E.D.N.Y. Aug. 29, 2014) (noting that the New York long-arm statute is narrower than the federal standard in refusing personal jurisdiction in a defamation case since the defendant did not develop any content while physically present in New York) .

321 P.3d 971 (Okla. 2014).

See Borchetto v. Hansing, 559 F.3d 1011 (9th Cir. 2008).

Zynga Game Network Inc. v. Does 1-5, 2010 WL 271426 (N.D. Cal., Jan. 21, 2010). See also Pacific Century Int’l Ltd. v. Does, 2011 WL 2690142 (N.D. Cal. July 8, 2011) (mere allegation that multiple Doe defendants used the same BitTorrent network to infringe a copyrighted work is insufficient to meet the standards for joinder set forth in Rule 20; court found no evidence that users acted together to download the work, despite the collaborative nature of members of a BitTorrent “swarm”); R&D Film 1 LLC v. Does 1-103, No. 12 -09041 (N.D. Ill. Jan. 8, 2013) (finding joinder inappropriate based solely on defendants’ participation in the same BitTorrent swarm); Malibu Media LLC v. John Doe No. 4, 2012 WL 5987854 (S.D.N.Y. Nov. 30, 2012) (defendant’s motion to quash subpoena to ISP denied, but court permitted the defendant to remain anonymous on account of privacy-related concerns).

Penguin Group (USA) Inc. v. American Buddha, 2011 NY Slip Op 02079 (N.Y. Mar. 24, 2011). Following the ruling by the New York Court of Appeal on the certified question, the Second Circuit vacated the lower court’s order and remanded to determine whether the plaintiff established the four remaining jurisdictional requisites under the New York long-arm statute, and the extent to which the assertion of personal jurisdiction would be consistent with the requirements of Due Process. Penguin Group (USA) Inc. v. American Buddha, 640 F.3d 497 (2d Cir. May 12, 2011). On remand, the district court dismissed the action for lack of jurisdiction because the plaintiff failed to show that the defendant derived “substantial revenue from interstate or international commerce” as required under the long arm statute. See Penguin Group (USA) Inc. v. American Buddha, 2013 WL 865486 (S.D.N.Y. Mar. 7, 2013). See also MacDermid, Inc. v. Deiter, 2012 WL 6684580 (2d Cir. Dec. 26, 2012) (Connecticut court may properly exercise long-arm jurisdiction over a defendant who, while domiciled and working in Canada, allegedly accessed a computer server located in the forum to misappropriate confidential information belonging to her employer). But see Troma Entertainment Inc. v. Centennial Pictures Inc., 2012 WL 1178998 (E.D.N.Y. Apr. 9, 2012) (mere claims of infringement against New York copyright holder is insufficient to trigger Penguin rule; downloading of films over the Internet and subsequent unauthorized licensing of the works is far different than the uploading of copyrighted works and online distribution that occurred in Penguin).

Internet Solutions Corp. v. Marshall, 2010 WL 2400390 (Fla. June 17, 2010). But see Penachio v. Benedict, 2012 WL 10971 (2d Cir. Jan. 4, 2012) (out-of-state witnesses in a family court proceeding who posted allegedly defamatory videos on YouTube, but had no related commercial interest in the forum, are not amenable to long-arm jurisdiction in New York).

Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273 (4th Cir. Mar. 23, 2009). But see Gallup, Inc. v. Business Research Bureau (PVT.) Ltd., 2008 WL 4857027 (N.D. Cal. Nov. 10, 2008) (federal court had subject matter jurisdiction over foreign defendants to hear the plaintiff’s Lanham Act claims based upon allegation that “Gallup” trademark had an adverse effect on U.S. commerce).