DMCA/CDA

Is the Owner of a Blog an "Interactive Service Provider"?

September 9, 2005

Communications Decency Act. Traffic Power.Com has sued Aaron Wall, owner of the Search Engine Optimization Blog, alleging defamation and misappropriation of trade secrets. Assuming that the offending material was not written by Wall himself (but rather by one of his posters), the defamation claim against him is likely to be barred by the federal Communications Decency Act (CDA), which provides in part: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. If Wall is not the publisher or speaker of the offending words, he cannot be liable for their publication on his blog. Although the term “interactive computer service” (ISC) is poorly defined, the courts have held that it includes not only traditional ISPs, but also web site hosts such as AOL. It’s hard to see why the definition shouldn’t extend to blog site owners. Assuming that Wall is found to be an ISC, he’s halfway home. A number of courts have held that the law protects ISCs from defamation claims. Immunity for trade secret misappropriation is more problematic. The CDA provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” However, the law fails to define “intellectual property.” While the three traditional branches of IP are unquestionably covered by this provision (patents, copyrights…

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Blizzard Entertainment v. Jung – Gamers Enjoined From Creating a Compatible Internet Environment

September 9, 2005

Copyright, DMCA. My partner Joe Laferrera has written a Client Advisory discussing the 8th Circuit’s decision in Blizzard Entertainment v. Jung, where the court held that the defendant’s efforts to reverse engineer Blizzard’s Internet gaming network in order to provide a competing, alternative network had (a) violated Blizzard’s shrink-wrap agreement, which prohibited reverse engineering, and (b) violated the Digital Millennium Copyright Act (DMCA). This is an important case in the rapidly developing jurisprudence of the DMCA. As well, it demonstrates once again the courts’ apparent willingness to enforce shrink-wrap licenses, and to permit copyright owners to use those licenses to override rights otherwise permitted by the Copyright Act. Read the case here. Read the Advisory here.

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The Wayback Machine and the DMCA

July 14, 2005

Copyright, Digital Millennium Copyright Act. Quick now, what’s a good legal strategy when you’re involved in a bitterly contested trade secret, copyright and trademark case? Sue the lawyers on the other side, accusing them of hacking, of course. At worst, you’ll distract them and knock them off their game; at best, you’ll force their disqualification, pushing them out of the case and making your opponent go to the expense and inconvenience (not to be underestimated) of hiring new counsel and and getting them up to speed on the case. And, it doesn’t matter that your suit may be borderline or even frivolous. Every experienced lawyer knows that in the American legal system the risks of being sanctioned for bringing a frivolous suit are only slightly higher than finding a hundred dollar bill on a Times Square sidewalk during lunch hour. So, what happened here? First, there is an underlying trademark and trade secret suit between the similarly named “Healthcare Advocates” and “Health Advocate” that is of no particular interest to anyone except the parties. One of the issues is whether Healthcare published its alleged trade secrets on the Internet in the late 1990’s. Health Advocate, the defendant, is represented by the Harding Earley law firm, the lawyers who are at the receiving end of the lawsuit in question. Seeking to investigate Healthcare’s publications on its Internet site in the late…

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