Tuesday, November 12, 2013

Internet Defamation Jury Trial Victory

Internet defamation attorneys Erik Syverson and Steven Gebelin of Miller Barondess, LLP recently scored a jury trial victory representing the Plaintiff against Dr. Adam Dorin, Orange County Superior Court case #30-2012-00586522.

On July 9 and July 17, 2012, anonymous emails were sent to Plaintiff's law firm and the State Bar of California.  The emails were sent from anonymous email addresses.  The emails falsely stated that Plaintiff was a threat to others, had borderline personality disorder, misused attorney client trust funds, had a police record, participated in illegitimate business transactions and engaged in acts of moral turpitude. 

Plaintiff filed the lawsuit naming John Doe as the initial defendant and served subpoenas on Internet companies for records identifying the sender of the emails.  The records for the July 9 email identified Dr. Adam Dorin as the sender.  Dr. Dorin sent the email from his hospital in between medical procedures.  The records for the July 17 email revealed that Dr. Dorin sent that email from the business center in his condominium building in Irvine, CA. 

At the time the emails were sent, Plaintiff was engaged in divorce and custody proceedings with his ex-wife.  Dr. Adam Dorin was engaged in a romantic relationship with Plaintiff's ex-wife at the time.

Dr. Dorin denied sending the emails, claiming alternatively that someone hacked into his Internet accounts and that he was not at a computer  at the time the emails were sent (the excuses included eating alone at a diner and being stuck in traffic).  Dr. Dorin produced not a single witness or shred of evidence to support his story.   

The jury did not believe Dr. Dorin's stories and awarded $75,000 to Plaintiff for emotional distress and reputational damages.  The jury went on to find that Dr. Dorin's conduct was willful and malicious thereby entitling Plaintiff to $125,000 in punitive damages.


Wednesday, September 18, 2013

Contributory Trademark Infringement Claims on Summary Judgment

In the context of a plaintiffs’ motion for summary judgment on contributory infringement claims, denial is particularly appropriate where there are disputed facts and inferences regarding the ability of a “marketplace” to monitor and control the activities of third party alleged counterfeiters based on the size of the marketplace, “number of security personnel, the alleged scope of the infringing activity” as a portion of the marketplace, and the defendants’ ability to identify infringing products. Adobe Sys. Inc. v. Canus Prods., Inc., 173 F. Supp. 2d 1044, 1053-55 (C.D. Cal. 2001) (applying Fonovisa v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir.1996) to deny summary judgment for contributory infringement claim against trade show promoter that did “not possess the practical right and ability to control the sale of infringing products”).  Denial of summary judgment on such a contributory claim is all the more appropriate because “amount of control necessary to support a finding of [contributory] liability is fact-specific.” Canus, 173 F. Supp. 2d at 1053 
Trademark infringement defense attorneys would be well-advised to study the Canus case and apply it in opposition to plaintiff summary judgment motions.

Friday, September 6, 2013

Search Engines Give Greater Scrutiny to Removal Orders

Reputation management attorneys will want to review Professor Eric Goldman's excellent recent analysis of court orders commanding the removal or de-indexing of defamatory internet postings.  In the past, despite not being a party to litigation, many search engines including Google reflexively de-indexed postings covered by such orders.  Professor Goldman is spot on in his analysis that such orders are typically overbroad and obtained via default judgment or stipulation.  Furthermore, such orders usually violate a search engine's due process rights.  Nonetheless, industry practice evolved to simply comply with such orders.  Apparently, that may be changing as search engines view such orders with greater scrutiny. 

Thursday, September 5, 2013

Obtaining Attorneys Fees After a Successful Motion to Quash

Many times companies or individuals file John Doe defamation lawsuits against anonymous defendants for internet based criticisms.  Inevitably, the plaintiff must serve subpoenas to various Internet Service Providers seeking information that may identify an anonymous consumer.  Such action should be considered carefully as a consumer who successfully files a motion to quash such subpoenas is often able to recover significant attorney fees.  In the case of Mad Catz Interactive, Inc. v. John Doe, San Diego Superior Court Case #37-201 3-00030075-CU-BT-CTL, the Court awarded my client over $36,000 in attorney fees after our motion to quash was granted.
Pursuant to California’s Code of Civil Procedure section 2023.030, the Court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.”  Cal. Civ. Proc. Code § 2023.030(a).  Moreover, when the Civil Discovery Act authorizes monetary sanctions, the Court “shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  Id.  Such misuses of the discovery process include, but are not limited to “(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery… (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense… [and]  (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.”  Cal. Civ. Proc. Code § 2023.010. 
In addition to the general authorization and mandate to impose monetary sanctions set forth in sections 2023.010, et seq., the Civil Discovery Act specifically requires monetary sanctions against persons acting without substantial justification that unsuccessfully:
·         oppose motions for orders to protect privileged information (Cal. Civ. Proc. Code § 2017.020);
·         oppose motions to sustain objections to written deposition inquiries (Cal. Civ. Proc. Code § 2028.040);  and
·         oppose motions to quash deposition notices (Cal. Civ. Proc. Code § 2025.410).
Fee awards on discovery type disputes are to be imposed in an amount representing “the reasonable expenses, including attorney's fees, incurred by anyone as a result” of a party's misuse of the discovery process.  (Cal. Civ. Proc. Code § 2023.030(a)).  Such fees include reviewing discovery documents, “attempting to meet and confer “and “preparing and reviewing” motions.  Parker v. Wolters Kluwer U.S., Inc., 149 Cal. App. 4th 285, 294, 57 Cal. Rptr. 3d 18, 25 (2007). On motions seeking attorneys’ fees, attorneys are entitled to be compensated at rates that reflect the reasonable market value of their services.  See, e.g., Serrano v. Unruh 32 Cal.3d 621, 643 (1982). 
Like the fee awards available under the Civil Discovery Act, Code of Civil Procedure section 1987.2 subdivision (a), provides that for a motion to quash a subpoena, the “court may award the amount of reasonable expenses incurred in making or opposing the motion, including reasonable attorneys' fees, if the motion was made or opposed in bad faith or without substantial justification or if one or more of the subpoena requirements was oppressive.”  2 Witkin, Cal. Evid. 5th (2012) Discovery, § 229, p. 1221 (citing Cal. Civ. Proc. Code § 1987.2(a)).  Although not expressly applicable to underlying actions filed in California, Section 1987.2 subdivision (c) can serve as persuasive authority for California litigants.  Under that subdivision, a court must award reasonable expenses and attorneys’ fees to a prevailing movant on a motion to quash a subpoena served on an Internet Service Provider for personally identifying information of a user where the underlying action arises from the exercise of free speech and the respondent fails to make a prima facie showing of a cause of action.  Cal. Civ. Proc. Code § 1987.2(c).  Often, each of those elements is met for California litigation, such that the only factor separating a motion by a California litigant is that the case was brought in California, otherwise all of the factors which led the Legislature to protect anonymous internet speech are also present.
The law puts the unsuccessful and speculative plaintiff in a tough spot.  In the context of discovery related sanctions “the phrase “substantial justification’ has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.”  Doe v. U.S. Swimming, Inc., 200 Cal. App. 4th 1424, 1434, 133 Cal. Rptr. 3d 465, 473 (2011).  Where sanctions are authorized by the Civil Discovery Act, the burden shifts to the party “against whom sanctions are sought to show substantial justification to avoid the imposition of sanctions.”  Kohan v. Cohan, 229 Cal. App. 3d 967, 971, 280 Cal. Rptr. 474, 477 (Cal. Ct. App. 1991); see also Doe v. U.S. Swimming, Inc., 200 Cal. App. at 1434. 
Internet anonymity has strong protection rooted in free speech rights.  “Judicial recognition of the Constitutional right to publish anonymously is a longstanding tradition.”  Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1163 (2008).  Due to that recognition, longstanding California precedent clearly sets forth the requirement that a plaintiff “make a prima facie showing of the elements of libel in order to overcome a defendant's motion to quash a subpoena seeking his or her identity.”  Id. at 1172.  Plaintiffs in anonymous internet defamation cases often proceed in a speculative fashion on claims that lack substantive factual or legal support.  This is often due to an exploratory desire to unmask individual(s) who are critical of the plaintiff.  As discussed herein, the speculative defamation plaintiff risks substantial financial downside as a result of the hunt for personally identifiable information. 

Friday, April 19, 2013

Youtube Posts Another Victory Against Viacom

Youtube scored a summary judgment victory against Viacom this week in the Southern District of New York.  The Court found that the DMCA's 512 safe harbors preclude liability.  Copyright infringement defense attorneys will enjoy professor Eric Goldman's in-depth analysis.  Now, off to the the 2nd Circuit.

Thursday, February 7, 2013

Tetris Wins Landmark Game Cloning Lawsuit

Copyright gaming infringement litigation attorneys should take note of a recent victory by Tetris over a defendant accused of cloning its game.  Xio Interactive, Inc. made a cloned copy of Tetris and sold it on Google Play and the Apple store.  This is one of the first court victories for a developer suing an app copycat.  Copyright infringement cases are incredibly complex but the basic battleground in such cases is the idea/expression dichotomy.  Under the Copyright Act, ideas are not entitled to protection.  However, the expression of ideas in a fixed medium is entitled to protection.  In the Tetris case, the court found that there was no factual or legal dispute that Xio had copied Tetris' expressive, protected game elements.  

This is one of the most important gaming/app cases of recent years.  Cloning is rampant - particularly out of China.  This case provides greater protection for developers and helps uphold the profit incentive for developers to continue to innovate and come up with new ideas.

Monday, January 14, 2013

Video Game and App Cloning Litigation Heats Up in 2013

The EA v. Zynga and Triple Town v. Yeti Town cases are ushering in a new wave of cutting edge copyright litigation in the games and apps space.  The video game space is notorious for copying or cloning of apps.  This has long been a criticism of Zynga - so much so that EA finally had enough and decided to test the limits of its copyrights in the expressive elements of Sims Social.

Copyright protects many things but it does not protect ideas or, in this instance, game concepts.  It may, however, protect the expression of certain game concepts such as character traits in Sims Social or the look and feel of the graphical interface of Triple Town.  Thus far, the Courts in both cases agree that EA and Triple Town have alleged legally sufficient claims.  The battle over expressive elements in video games and apps may go a long way to shaping the profitability of gaming intellectual property in the coming decade.  If app developers are granted expansive rights under the Copyright Act, licensing opportunities may exist or copyrights may be used offensively to keep competitors out of the lucrative apps marketplace.  Currently, this is common place with regard to patents where companies arm themselves with large portfolios of patents, often of dubious nature, in order to mount offensive attacks against competitors.  This has most famously been on display in the smart phone wars waged between Apple and its chief rival Samsung.

For these reasons, gaming infringement litigators will be paying close attention to the outcome of the EA and Triple Town app cloning lawsuits.

Monday, January 7, 2013

Scraping Lawsuits and Copyright Claims

Professor Eric Goldman had an interesting post recently recapping the growth of scraping lawsuits in the e-real estate industry.  Web scraping, in simplest terms, is the practice of harvesting data from a particular website.  Often, this data is copied and re-packaged on another website for the purpose of monetary gain - either through sales, clicks or links.

Real estate websites, as Goldman's post points out, are particularly susceptible to this practice.  Real estate internet listings usually consist  of photographs and text descriptions of the property.  Copyright law is the most obvious tool useful for protecting such information and prosecuting data scrapers.  Interesting analysis has appeared lately questioning whether or not the text descriptions of the properties contain enough creative expression to deserve protection under the Copyright Act.  Furthermore, scrapers may advance a broad defense under the Fair Use Doctrine.

Goldman points out, and I agree, that the photographic elements of such listings likely provide the strongest protection.  Photographs are generally unquestionably granted protection under the Copyright Act.  As such, multi-listing services should make sure not only to include photographs but to obtain proper ownership and submit copyright registrations.  Registrations entitle plaintiffs to statutory damages and attorney fees in the event of infringement.  This is important because often scraping infringements do not result in quantifiable or significant damages - rendering litigation an unprofitable option. 

Even if copyright infringement claims are not clear, there are usually a number of viable state law claims to combat scraping.  The most obvious is breach of contract - which can be accomplished by inserting a no scraping clause in a website's terms of service.  Some courts may have problem with assent if there is no affirmative click through agreement.  Secondly, depending on how scraping is accomplished (there are several methods), there may be claims under the CFAA for unauthorized server access.  Finally, many states, in particular, California, have unfair competition laws which offer broad protection for business practices deemed unfair.  As long as pecuniary damages can be shown or that the defendant profited from the scraping activity, such claims are likely to succeed. 

An experienced Internet copyright litigation attorney is able to advise both defendants and plaintiffs of their rights in web-scraping cases.