Once again, I sat down with my fellow First Amendment Lawyers in Toronto, Ontario, Canada this past week to give them their bi-annual dosage of internet law updates. Here is a summary of what was presented.

Supreme Court Decisions


June 25, 2014, US Supreme Court determined that Aereo violated The Copyright Act of 1976 which gives owners the exclusive right to “perform the copyrighted work publicly.” 17 U.S.C. 106(4)
Aereo provided near real time television viewing to subscribers via the use of a network of antennas. Subscribers would order a show on the company website then the show would be saved in a cloud based storage and then streamed to the customer, with a very minor lag time.

American Broadcasters claimed that Aereo was violating the copyrights of it’s products. Aereo contended that it was the users, who ultimately ordered the streamed shows, that were violating copyrights. Those who disagree with the decision likened Aereo’s service to that of a copyshop. Following the logic that if it was the person that makes the photocopy of a book becomes the violator of the copyrights rather than the library that gave the patron the library card, then the same logic holds true for online broadcast streaming.

The decision puts other cloud based services into a copyright infringement grey area. Copyrights of other items bought and held and streamed from the cloud become less obvious. (Kindle Books; Apple Music)

“My Cell Phone takes the 4th”

DAVID LEON RILEY v. CALIFORNIA 573 U. S. ____ (2014)

June 25, 2014, US Supreme Court 9-0 decision requires law enforcement to obtain a search warrant for cell phone searches.

Belief that the law can be extrapolated to other digital devices…computers, google glasses, ipads.

The Court determined that Metadata should receive the same 4th Amendment protections as traditional data.

Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom. …

Cell phones [have the] capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. …

a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is. … Riley at. 14-16.

Revenge Porn Update

Contiguglia/Fazzone lends support to CO Revenge Porn Law!

On May 29, 2014 Colorado joined 8 other states which have adopted Revenge Porn Laws . Above, Colorado’s Governor John Hickenlooper signs HB 14-1378 into law. To the Governor’s left,

Senator Amy Stevens of Colorado Springs watches as the bill she sponsored gets signed into law. To the Governor’s right, A perfect photo bomb for Contiguglia.

FALA member, Andrew Contiguglia, helped promote the passage of the bill through testimony in front of both Colorado House and Senate Judiciary Committees.
The new law will make it a Misdemeanor in Colorado to post intimate pictures on the internet with the intent of causing severe emotional distress to those depicted in the pictures. Fine up to $10,000.00

Contiguglia lobbied for the addition of a civil penalties provision to be added to the bill.

Other state efforts

ARIZONA, H.B. 2515, STATUS: April 30, 2014; Signed by Governor. Provisions

Prohibits a person from intentionally disclosing, displaying, distributing, publishing, advertising or offering a photograph, videotape, film or digital recording of a person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.
Exempts the following from the above prohibition:
Lawful and common practices of law enforcement, reporting unlawful activity, or when permitted or required by law or rule in legal proceedings.
Lawful and common practices of medical treatment.
Images involving voluntary exposure in a public or commercial setting.
Internet service providers and cell phone network providers.
Classifies a violation of this section as the following:
Class 5 felony.
Class 4 felony if the depicted person is recognizable.
Defines state of nudity and specific sexual activities.

Delaware, HB 260; This bill adds to the existing crime of Violation of Privacy additional prohibited conduct related to “revenge porn”.

The bill details six situations that would aggravate this offense:
obtaining the visual depiction without the consent of the person depicted,
committing the offense for profit,
maintaining an internet website, online service, online application, or mobile application for the purpose of committing this offense,
committing this offense with the intent to harass, annoy, or alarm the person depicted,
committing this offense and pairing the visual depiction with personally identifiable information of the person depicted, and
committing this offense within 5 years of a prior conviction for this offense.
This bill makes clear that in addition to when the consent of the person depicted is given, certain currently lawful conduct is not intended to be made unlawful by the addition of this paragraph to the crime of Violation of Privacy.
This bill further amends the existing crime of Violation of Privacy to make this offense a class B misdemeanor and to make this offense, when aggravated, a class G felony.

Georgia; Makes Revenge Porn an aggravated Misdemeanor, or a Felony for subsequent violations, punishable between 1 – 5 years and a fine up to $100,000

Hawaii; Makes it a Class C felony; as part of the penalty court can order the images destroyed.

Illinois, Makes it a Class 4 felony;

Maryland, Makes this crime a misdemeanor, punishable up to 2 years in jail and up to $5,000 crime.

Many others: visit https://www.ncsl.org/research/telecommunications-and-information-technology/state-revenge-porn-legislation.aspx

Revenge Porn King Hunter Moore arrested by FBI and Indicted by a Federal Grand Jury

On 12-20-2013 a California Federal Grand Jury issued a True Bill for Hunter Moore and his associate Charles Evans with 15 counts. 1 count of Conspiracy, 7 Counts of Unauthorized Access to Protected Computer Info, and 7 Counts of Aggravated ID theft.
Moore is accused of hiring Evans to hack into email accounts to obtain explicit photos. Moore paid Evans for the photos and then posted them on his website, isanybodyup.com. Moore allegedly made over $13,000.00/month from his website.

Moore has always claimed he was immune from prosecution under Sect 230 of the US Communications Decency Act. He may be correct- in part. There are no charges for Hosting Revenge Porn, which is not a Federal Crime, although it has become a crime to post intimate photos without consent in several states. Perhaps Moore’s ego forgot the Rule of Al Capone… Big Brother finds a way.
Decisions that Keep the 1st Amendment strong…


Bloggers get the same protection as traditional Media

On Jan. 17, 2014, the 9th Circuit unanimously overturned a defamation lawsuit filed by Obsidian Finance Group against blogger Crystal Cox.
The court based its decision on Gertz v Welch, 418 U.S. 323, 350 (1974) (holding that the First Amendment required only a “negligence standard for private defamation actions”).
“The Protections of the First Amendment do not turn on whether the Defendant was a trained journalist.” Judge Andrew Herwitz

Criminal Law Cases

Commonwealth v. Augustine, 467 Mass. 230 (Mass. 2014)

Defendant filed motion to suppress his cellular telephone information, which police had used to determined his whereabouts at time of alleged murder, claiming the information was obtained without a search warrant and without probable cause.

Police investigators’ access of defendant’s cellular telephone information amounted to a search requiring a search warrant.

In the present case, the defendant made a showing of a subjective privacy interest in his location information reflected in the CSLI records, and for all the reasons we have considered here, we conclude that this interest is one that our society is prepared to recognize as reasonable.

Social Media Cases

Gulliver Schools, Inc. v. Snay, 137 So.3d 1045

School’s former headmaster filed motion to enforce settlement agreement with school, arguing that his statement to his college age daughter and her comment on social media, about school paying for her summer vacation, did not constitute a breach of confidentially provision of settlement agreement.
Daughter posted on Facebook:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.
Based on the clear and unambiguous language of the parties’ agreement and Snay’s testimony confirming his breach of its terms, the Court reversed the order entered below granting the Snays’ motion to enforce the agreement.

KIND LLC v. Clif Bar & Company, 2014 WL 2619817 (S.D.N.Y. June 12, 2014)

The maker of KIND bars sued the maker of Clif bars alleging that the packaging of the Clif MOJO bar infringes the trade dress used for KIND bars. Plaintiff moved for a preliminary injunction, but the court denied the motion.

But in its analysis, the court considered the relevance of a Twitter user’s impression of the products.
Plaintiff submitted a tweet as evidence in which the user wrote:

“I was about to pick up one of those [Clif MOJO bars] because I thought it was a Kind Bar at the vitamin shop ….” The court found that this type of initial interest confusion was actionable and therefore the tweet supported plaintiff’s argument.

Maremont v. Susan Fredman Design Group, Ltd., 2014 WL 812401 (N.D.Ill. March 3, 2014)

While plaintiff was away from the office for a serious brain injury she suffered in a work-related auto accident, some of her co-workers accessed and posted, allegedly without authorization, from her Twitter and Facebook accounts.

(There was some dispute as to whether those accounts were personal to plaintiff or whether they were intended to promote the company.)

Plaintiff sued, alleging several theories, including violations of the Lanham Act and the Stored Communications Act. Defendants moved for summary judgment. The court dismissed the Lanham Act claim but did not dismiss the Stored Communications Act claim.

Jones v. Dirty World Entertainment Recordings, LLC _____F.3d______(2014); 2014 WL 2694184 (6th Cir. June 16, 2014)

CDA Provides Immunity to Dirty World, even if they select and add comments to posts.

On June 16, 2014, the 6th Circuit Vacated and Reversed USDC for Eastern Kentucky, 965 F. Supp.2d 818. The Appellate Court provided Judgment as a Matter of Law.
Former Cincinnati Bengal Cheerleader and High School Cheer Coach Sarah Jones was the target of anonymous degrading posts on the website, www.TheDirty.com. The website operator selected the posts, and added comments his personal comments to the post.

Jones brought an action in federal district court alleging defamation, libel per se, false light and intentional inflection of emotional distress. A second jury ( the first trial ended in mistrial) awarded Jones $38,000 in compensatory damages and $300,oooo in punitive damages.

Dirty World appealed. Dirty World argued that the Communications Decency Act of 1996(CDA), 47 U.S.C. § 230 protects the website from liability. The 6th Circuit agreed, relying on the 9th Circuit interpretation of the concept of “development” in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) and vacated the judgment in favor of Jones and reversed the district court’s denial of Dirty World’s motion for judgment as a matter of law with instructions to enter judge as a matter of law in their favor.

Copyright Cases

How did Teller win a copyright lawsuit if magic tricks aren’t copyright protected?
PFM! (Pure Factual Magic)

March 29. 2014, Teller, of the Famous Magician Duo Penn and Teller, was granted Summary Judgment on his Copyright Infringement Lawsuit filed in the 9th Circuit.
Teller presented evidence that he copyrighted his “Shadows” magic trick in 1983. Fellow magician and You Tube Entrepreneur, Gerard Dogge, posted a very similar trick on You Tube and then offered to sell the secret to the magic trick to interested buyers.

US District Judge agreed with the Defendant ‘s argument that “Magic Tricks” are not copyrightable.

However, the Judge determined Dramatic Works and Pantomimes Acts which convey emotions, actions and feelings by gestures is copyrightable. (Teller does not speak in his performances) The Judge granted SJ to all issues with the exception of Willful Infringement, which will be sent to a jury and will determine damages. Teller was denied his contemporaneous motion filed for Unfair Competition.