Web/Tech

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By Dale Campbell

The Ninth Circuit has attempted to end the disputes arising from the creation of Facebook. As dramatized in the Hollywood blockbuster, The Social Network, the Winklevoss twins and other Harvard graduates claimed that Mark Zuckerberg stole the idea for Facebook from them. The Winklevosses claimed they conceived and created the idea for a social network, then known as Harvard Connection and later as ConnectU, and hired Zuckerberg to complete the programming.

The Winklevosses claimed that Zuckerberg was involved in all aspects of the website development and business planning for Harvard Connection and acted as a member of the Harvard Connection development team. Zuckerberg was allegedly entrusted with the basic idea for the project and enterprise, including database and website design. Moreover, the Winkelvosses alleged that Zuckerberg was provided information regarding the website’s business model, functionality, concepts, and information to be collected from users. The Winklevosses alleged that Zuckerberg utilized all of this information in creating Facebook and failed to advise the Winklevosses that he had stopped working on the Harvard Connection code but, instead, was developing a competing website. The complaint alleged a variety of business torts including copyright infringement, misappropriation of trade secrets, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, and interference with prospective economic advantage. Continue Reading At Some Point, Litigation Must Come To an End

By: Jeffrey Pietsch

A New Jersey Superior Court recently granted summary judgment in favor of online ticket resellers who were sued by the New Jersey Attorney General’s Office for violating New Jersey’s Consumer Fraud Act and Advertising Regulations. The summary judgment was granted by the court based on the immunity provided by Section 230 of the Communication Decency Act of 1996 (CDA).

The CDA was initially proposed in 1996 to regulate indecency and obscenity on the internet. Major parts of the bill were eventually eliminated because they were deemed to violate the first amendment. Section 230 of the bill, however, increased the scope of free speech on the internet by limiting the liability of online service providers for speech made by their customers. Section 230 was enacted as a direct result of the ruling issued by the New York State Supreme Court in Stratton Oakmont, Inc. v. Prodigy Services Co. In that case, the court ruled that Prodigy was essentially a publisher of the words of its customers and therefore could be liable for acts of its customers. Without Section 230 overturning this ruling, the internet landscape would be quite different than it is today. Continue Reading Online Ticket Resellers Immune Under the Communication Decency Act

By Dale C. Campbell and David Muradyan

The Seventh Circuit and the Ninth Circuit do not agree on what constitutes “authorization” under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (2004) (“CFAA”)?  The CFAA prohibits accessing computers “without authorization” or “exceed[ing] authorized access” to take various forbidden actions, ranging from obtaining information to damaging a computer or computer data.  See 18 U.S.C. § 1030(a)(1)-(7). Notably, the CFAA provides a private cause of action for persons who have suffered harm resulting from computer fraud.  Id. § 1030(g).  The CFAA provides, in relevant part: “Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.” Id. To assert a viable claim, the harmed plaintiff must allege, among other things, that the defendant intentionally accessed its information “without authorization” or “exceeds authorized access.” Id. § 1030(a)(2). Congress enacted the CFAA in 1984 to enhance the government’s ability to prosecute computer crimes.  LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1130 (9th Cir. 2009).  The CFAA was targeted to rein in hackers who illegally accessed computers to steal data or to disrupt or destroy computer functionality. Id. The CFAA was also designed to target criminals who possessed the capacity to “’access and control high technology processes vital to our everyday lives . . ..’”  Id. at 1130-31 (citing H.R. Rep. 98-894, 1984 U.S.C.C.A.N. 3689, 3694 (July 24, 1984).Continue Reading The Seventh And Ninth Circuits Split On What Constitutes “Without Authorization” Within The Meaning Of The Computer Fraud And Abuse Act

by Jeff Pietsch

In a recent case from the Eastern District of Missouri, Cornelius v. DeLuca (E.D. Aug. 18, 2009), the district court addressed whether a fitness website and online retailer was liable for negative comments and reviews posted by users concerning plaintiffs’ dietary supplements.  In Cornelius, plaintiffs Cornelius and Syntrax Innovations, Inc. alleged that its competitors were posting on defendants’ website “libelous statements” about the plaintiff and had “tortuously interfered with plaintiffs’ business expectancies.”  Further, plaintiffs alleged that Ryan Deluca and Bryna Mathews DeLuca, principals of the website in question, Bodybuilding.com, had engaged in a “civil conspiracy” with the competitors to “post libelous statements and to tortuously interfere with plaintiffs’ business expectancies.” Specifically, plaintiffs alleged that the internet website bodybuilding.com was an online retailer for the sale of nutraceuticals, including those manufactured by plaintiffs, and that the website allowed representatives of plaintiffs’ competitors to post “libelous statements regarding plaintiffs and their products” in the public forums and comments. Finally, plaintiffs alleged that the defendants assisted the competitors by posting the libelous statements which were false and open to the public.Continue Reading Online Retailer Not Liable for Libelous User Posts

by Dale Campbell and Emily Hirsekorn

State rules concerning electronic discovery just got clearer. On June 29, 2009, Governor Schwarzenegger signed the Electronic Discovery Act (the “Act”), which became effective immediately. Just last year, the Governor vetoed an almost identical version of the Act in order to focus more attention on the budget crisis. Of course, we see how well that plan worked. The Act is modeled after the 2006 amendments to the Federal Rules of Civil Procedure. The new rules govern the discovery procedure for electronically stored information (“ESI”) in California civil actions. Continue Reading Updating California’s Discovery Rules with the Electronic Discovery Act