One of the primary purposes of the Communications Decency Act (“CDA”) is to limit liability for certain internet content providers specifically protecting websites from liability for material posting on their website by a third party. In Jane Doe No. 14 v. Internet Brands, Inc., the operator of a networking site in the modeling industry sought to use the CDA as a defense to a negligence claim based on a failure to warn.  The facts of the case are horrific.

Jane Doe was an aspiring actress who posted her information on the networking site Modelmayhem.com.  In February 2011, she was contacted by two men Lavont Flanders and Emerson Callum, about a modeling audition in Florida.  Jane Doe traveled to Florida to meet with the two men and was given a drug that caused her to pass out after which she was raped and the assault made into a pornographic film.   (Flanders and Mr. Callum were convicted of numerous crimes by a federal jury in Florida and sentenced to life in prison for this and other similar assaults.)

Jane Doe claimed that the owner of the Modelmayhem.com website, Internet Brands, Inc. knew of the two men’s unlawful conduct but took no steps to warn her or other users of the threat.  Prior to the 2011 assault, Internet Brand, which had purchased the Modelmayhem site in 2008, had apparently sued the seller of the site in 2010 for failing to disclose the potential civil liability arising from the criminal deeds of Callum and Flanders.  She brought a claim against Internet Brands, Inc. for negligence under California law which recognizes a cause of action for failure to warn. Internet Brands moved to dismiss the claim asserting that the CDA immunized it from liability as to Jane Doe’s claims.  The trial court agreed and dismissed the complaint.  Jane Doe appealed to the Ninth Circuit which reversed the trial court’s decision in an opinion dated September 17, 2014.Continue Reading Model Mayhem – The Communications Decency Act is Not a Defense to Negligent Failure to Warn Claim

Under the WIPO Internet Treaties, member states are required to recognize in their national laws  the exclusive right of  authors of works to ‘‘make [the works] available’’ and ‘‘communicate [the works] to the public’’, including through interactive platforms, such as the Internet. The United States implemented the WIPO Internet Treaties through the Digital Millennium Copyright Act (‘‘DMCA’’) in 1998.  Based on advice received from the Copyright Office and others, Congress did not amend U.S. law to include explicit references to ‘‘making available’’ and ‘‘communication to the public,’’ concluding that the distribution right under the Copyright Act already covers those rights.  However, because of  the absence of express “making available” language in the Copyright Act, courts in file-sharing litigation have reached somewhat different conclusions as to whether the distribution right requires proof of actual dissemination.

Commentators on the subject have opined that the “making available” right is subsumed within the distribution rights set forth in Section 106 of the Copyright Act and that most courts have correctly interpreted the Act as such.  These courts have found that a defendant infringes the distribution right by making the work available without having proof that the work was actually accessed by others.  For example, in  A&M Records, Inc. v. Napster, the 9th Circuit held that “Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights”.  Also in UMG Recordings, Inc. v. Alburger, the United States District Court for the Eastern District of Pennsylvania held that “There is no requirement that plaintiffs show that the files were actually downloaded by other users from Defendant, only that files were available for downloading.”

However, it appears that some courts have concluded that an infringement of the distribution right under the Act does not occur in the absence of actual dissemination. For example, in Atlantic Recording Corp. v. Howell, the District Court of Arizona  held that “[the distribution right] is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public.” 
Continue Reading Will The Copyright Act be Amended to Include a “Making Available” Right

   Under California law, a plaintiff must bring a claim for trade secret misappropriation within three years of discovering the misappropriation or, by the exercise of reasonable diligence, should have discovered the alleged misappropriation.  Often times, discovery of alleged trade secret misappropriation is rather straightforward, i.e., a company discovers that its former employee has downloaded information from a computer and has started soliciting customers to do business with a competitor.  However, there are times when discovery is less straightforward, especially in product development where it can take years for a product to hit the market.  One potential source of information that may give rise to the discovery of trade secret misappropriation that employers must be aware of are patent filings.  The U.S. District Court in the Northern District of California recently used evidence of a patent filing to grant summary judgment in favor of a defendant accused of trade secret misappropriation in the case: Wang v. Palo Alto Networks, Inc. (Case No. 12-05579).

Mr. Wang was a design engineer specializing in the field of network security.  He spent approximately a decade trying to commercialize his firewall technology that included  “fast signature scan” technology.  In 2004, he filed a patent application on his technology.  His patent eventually issued in November 2008.

For years prior to the issuance of his patent, he tried to interest venture capitalists in his product.  In 2005, Mr. Wang met defendant Fengmin Gong at a seminar.  Mr. Gong was a chief scientist at McAfee, Inc. at the time.  Mr. Wang gave Mr. Gong a brief overview of the technology he was developing and later had Mr. Gong sign a nondisclosure agreement.   Over the next year, Mr. Wang discussed his alleged trade secrets with Mr. Gong and even gave him a copy of his patent application that contained trade secret information.  Mr. Gong was supposedly the only person to whom Mr. Wang disclosed his trade secret information.
Continue Reading Patent Filings and the Potential Discovery of Trade Secret Misappropriation

The U.S. District Court for the Central District of California handed a big victory to Warner Bros. when it ruled that Gotham Garage violated Warner Bros.’ intellectual property rights in the iconic Batmobile.  There was a question whether Warner Bros.’ rights in the Batman franchise would prohibit the production of an automobile designed like the Batmobile since the Copyright Act does not protect automobile designs.  The Court found that the Batmobile was a protectable character of the Batman franchise and the replicas manufactured by defendant were infringing derivative works.

Gotham Garage manufactured and produced custom cars modeled after vehicles found in various television shows and movies. It had been producing and selling replica vehicles based on the 1966 and 1989 Batmobiles. Gotham Garage also manufactured automobile parts featuring the Batman trademarks and did business in a manner utilizing various Batman trademarks. Warner Bros. filed a lawsuit In May 2011 alleging that Gotham Garage infringed the copyrighted versions of the 1966 and 1989 Batmobile and infringed various Batman trademarks in the marketing and selling of its custom vehicles.

The court made easy work of the trademark claims. The Court noted that Gotham Garage did not contest Warner Bros.’ trademark claims, and did not dispute that it manufactured and distributed parts and accessories featuring the Batman trademarks and used the Batman trademarks in connection with the operation of its business.  The Court found that Gotham Garage’s use of the Batman trademarks caused a likelihood of confusion; that consumers were likely to be confused as to the source of the products.  The defendant admitted that “most of his potential customers ask if he had a relationship with Warner Bros. or was licensed by Warner Bros.”   The Court found that this initial interest and confusion impermissively capitalizes on the goodwill associated with the Batman trademarks.
Continue Reading Holy Lawsuit Batman

Most of us have become familiar with the terms and conditions printed on the back of the ticket that is obtained when parking our cars in public lots. We all are familiar with the caption at the top of the ticket proclaiming “This contract limits our liability, please read it.”  Having parked my car hundreds of times in public parking lots, each time receiving a small ticket informing me of this proclamation, I now scandalously admit that I have never read these terms. Yet, if a dispute were to ensue regarding the terms and conditions of my use of public parking, the dispute would likely center around the terms and conditions that I have carelessly ignored in cavalier fashion. While I’m not suggesting that we review, analyze, revise and negotiate the boilerplate terms thrust upon us in the context of public parking, I mention this frequently overlooked contract relationship to demonstrate that we often may enter into contracts with others, while giving little thought or consideration to the terms we have accepted.Continue Reading This Contract May Cause You Unlimited Liability – Please Read It