Friday, May 25, 2012

Internet litigators need to be aware of an often overlooked California domain name statute.  California Business and Professions Code section 17525 states that "It is unlawful for a person, with a bad faith intent to register, traffic in, or use a domain name, that is identical or confusingly similar to the personal name of another living person or deceased personality, without regard to the goods or services of the parties."

This statute may offer relief for plaintiffs where there is no federally registered trademark and thus, the Anti-Cybersquatting statute and Lanham Act are inapplicable.  Often that is the case when domain names for individual legal names are at issue.  Frequently, such registrations are used by tortfeasors to defame a particular individual on special purpose websites.  Bad faith factors are set forth in section 17526, some closely track UDRP and Anti-Cybersquatting standards.

Tuesday, May 22, 2012

Anti-SLAPP Motions in Federal Court

California business litigation attorneys need to be aware of the application of California's anti-SLAPP statute in federal court.  C.C.P. section 425.16 is a broad statute protecting written or oral statements in connection with a public issue or public debate.  It has been a wildly successful tool for defendants wishing to dismiss lawsuits at an early stage.  Successful defendants are entitled to attorneys fees and costs in California state court.

In the 9th Circuit, United States ex rel. Newsham v.Lockheed Missiles & Space Co., Inc., 190 F.3d 963 (9th Cir. 1999) held that California's anti-SLAPP statute is applicable to state law claims.  In state court, the ballgame is generally over after the granting of an anti-SLAPP motion as leave to amend is not provided.  In federal court, this is in contravention of Federal Rule of Civil Procedure 15 (a)'s policy of liberally granting plaintiffs leave to amend.  In Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064 (9th Cir. 2010), the 9th Circuit made statements indicating that California's anti-SLAPP statute does not prevent the granting of leave to amend subsequent to the granting of the special motion to strike.

The case of Verizon Delaware, Inc. v. Covad Communications Co., 377 F.3d 1081 (9th Cir.2004), leaves open the question of whether or not a defendant is entitled to attorneys fees if the plaintiff dismisses covered state law claims subsequent to the filing of the motion.  In superior court, the defendant is entittled to attorneys fees in this scenario.  Subsequent district court cases have found that a defendant recovers its attorneys fees only if the plaintiff later reasserts the same meritless state claims in an amended complaint.

Attorneys litigating anti-SLAPP issues in federal court need to be aware of the California statute's nuanced application and less than definitive caselaw. 

Monday, May 21, 2012

Social Networking and Litigation - A Dangerous Combo

As a trial lawyer specializing in internet and social media litigation, I have witnessed the destructive power of social networking to a claim or defense.  Litigants should steer clear of social networking except for marketing or CRM purposes.  Nothing can sink a case faster than a damaging admission fresh from a Facebook profile or Twitter feed.

Insurance companies and other sophisticated litigants frequently employ investigators and crawling technologies to access social networking pages and profiles.  Some may even use pre-texting techniques to access information that is privacy protected.  Such techniques may include friending or following an opposing party.  These pre-texting techniques may violate state bar ethical rules but, some courts have allowed this evidence to be introduced at trial or on summary judgment.  We have seen this type of evidence pop up frequently in trade secrets cases and other business torts such as interference with contractual relations.

There are a few best practices for litigants to follow with regard to social media behavior.  First, do not friend or follow any unknown individuals or entities.  Second, make sure privacy settings are set up to limit access by the general public.  Finally, never comment on any aspect of your lawsuit in any social media setting.  

Thursday, May 3, 2012

DMCA Safe Harbor Vulnerability

The Digital Millennium Copyright Act's safe harbor provision for Internet service providers may be experiencing some cracks.  In Viacom International Inc., et al v. YouTube Inc., et al., the 2nd Circuit ventured from traditional rubber stamp summary judgment granting of immunity.  Service provider actual knowledge of infringement is still required in order to void Section 512(c) immunity.  Nonetheless, the 2nd Circuit did not grant summary judgment for YouTube because it found the record created a factual issue regarding YouTube's knowledge of instances of infringement.  Basically, the Court found that there was sufficient evidence of YouTube's knowledge to take to a jury.  This cuts against the recent trend of unfettered robust content distributor immunity. 

This is an important decision for copyright litigation attorneys, especially those with Internet law expertise representing Internet service providers.  That is because courts that choose to adopt the 2nd Circuit's approach are likely to engage in a meaningful factual inquiry of whether or not content distributors such as YouTube possessed knowledge of specific infringements.  Therefore, more of these cases could find their way to juries which provides a much greater incentive for YouTube to settle claims brought by content owners such as Viacom.