Cyber Lawyer Blog

U.S. v. Cassim: Domingo Rivera obtains first Federal "music piracy" jury trial defense victory

djr@cyberlawyerblog.com (Cyber Lawyer) — Sat, 20 Mar 2010 05:16:00 GMT

Today, a federal jury acquitted Adil Cassim who was represented by Domingo J. Rivera. The United States Department of Justice had alleged that Adil Cassim was the leader of Rabid Neurosis ("RNS"). On the DOJ website, the press release alleged that "according to the indictment, the defendants, led by Cassim for a period of time, allegedly conspired to illegally upload to RNS thousands of copyright protected music files, which were often subsequently reproduced and distributed hundreds of thousands of times. According to the indictment, RNS was a "first-provider" or "release group" for pirated music and other content to the Internet. Once a group obtains and prepares infringing digital copies of copyrighted works, the copies can then be distributed in a matter of hours to secure computer servers throughout the world. According to the indictment, RNS members were granted access to massive libraries of pirated music, video games, software and movies by gaining a reputation for providing previously unavailable pirated materials. The indictment alleges that the supply of pre-release music was often provided by music industry insiders, such as employees of compact disc (CD) manufacturing plants, radio stations and retailers, who typically receive advance copies of music prior to its commercial release.Read the USDOJ press release here.

Various alleged members of RNS have been convicted. The jury's verdict was released a few hours ago, more details will be available soon.

The CDA, cyber-racketeers, the DMCA, and changes to Section 230 by Domingo Rivera

djr@cyberlawyerblog.com (Cyber Lawyer) — Wed, 26 Nov 2008 16:35:00 GMT

It has been quite a while since my previous post. I have been extremely busy assisting my clients with Internet legal matters. Internet defamation continues to affect the reputation of businesses and professionals as former customers, patients, and others who know that they do not have valid legal claims assert their false and frivolous complaints in blogs, forums and smear sites. Even competitors are now posing as unsatisfied consumers in order to post false and defamatory statements with hopes to gain an unwarranted economic advantage. Everyday we protect the reputation of businesses and professionals against these unlawful practices.

With the elections over, it is now time to get back to business as normal. Speaking of the elections and politicians, many do not know that they can thank Congress for the continued proliferation of Internet defamation. The name of the culprit law is Section 230 of the Communications Decency Act. The purpose of this law was to allow Internet service providers to be able to alter or remove objectionable content without assuming the liability associated with a traditional publisher of content. Congress sought to allow providers of interactive computer services to perform some editing on user-generated content without becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete. In other words, Congress sought to immunize the removal of user generated content, not the creation of content.

Sections 230(c)(1) and 230(e)(3) provide that "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," and that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Noble intentions behind this Congressional law, but not-so good intention behind "Internet street law" which could be read as saying "service provider, you can stand by while your services are used to ruin the reputation of good businesses and people, don't worry, we will not hold you liable."

This has given rise to many consumer complaints websites. While some of these are well-intentioned and responsible, the majority are not. The lawlessness has now sparked many websites charging fees for "investigating" consumer complaints. Some of these websites have their employees call their targets and offer to help with the defamatory postings... for a membership fee, of course. Some of these websites have been known to have their employees actually create the postings in an "anonymous" manner.

There are certain of these websites who charge a sliding scale fee for these memberships. Therefore, if you are a successful business and you wish to have the false postings edited or removed, it may cost tens of thousands of dollars. But the administrators of this scheme apparently have a kind and gentle heart. Therefore, if you believe that their fee is not financially feasible to you, they offer you the opportunity to prove it to them and request a lower fee. But you must provide them your private financial information first. Are these practices any different from the mafia employee going to a store and demanding the boss' "share" of the business earnings. Well, the threat of physical violence is now absent, but the demand is essentially the same "give us our share of your income or we will put you out of business." The name for this practice is racketeering.

Now, if Domingo Rivera was a politician, which by the way is a very far-fetch thought, what would he do? Well, Congress could look close to home for a smart, practical way to amend the CDA. There is no reason for not adopting the takedown procedures mandated under the Digital Millennium Copyright Act (DMCA).

Under the DMCA, if a copyright owner discovers that contents are posted online in violation of the copyright owner’s rights, the copyright owner has the opportunity to have the allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled. To accomplish this, the copyright owner must provide notice to the service provider. Once proper notice is given, the service provider is required to expeditiously remove, or disable access to the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.

Upon receiving notice that the allegedly infringing material has been removed, the person responsible for posting the contents has an opportunity to send a counter-notice to the service provider stating that the material has been wrongly removed. If a subscriber provides a proper counter-notice, the service provider must then promptly notify the copyright owner. If, after receiving the counter-notice, the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is required to restore the material. Additionally, under the DMCA, if it is determined that the copyright owner misrepresented the claim, the copyright holder then becomes liable to the individual who posted the contents for any damages that resulted from the improper removal of the material.

A similar approach can be utilized for defamation claims. Under this approach, a person discovering defamatory contents would be able to send a sworn notification to the service provider. Upon receipt, the service provider would remove the contents or disable access to the contents. At that time, the person posting the contents may serve a counter-notice. If after a period of time, the defamation victim has not filed a lawsuit, then the contents could be restored. This approach would allow for free truthful expression on the Internet while at the same time fairly providing a method that allows those defamed to protect their reputation online.

Do I see this happening anytime soon? Probably not (and Domingo Rivera has no plans of running for office). In the meantime, we will continue to devise novel strategies and techniques for protecting the reputation of Internet businesses against the cyber racketeers.

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Cease and Desist Letters: Balancing the Punishment for Bad Faith Against the Punishment for Bad Letters

djr@cyberlawyerblog.com (Cyber Lawyer) — Sat, 14 Jun 2008 04:34:00 GMT

There is no doubt that cease and desist letters serve a very important purpose in the litigation process, particularly in legal matters related to the Internet. Many causes of action have bad faith as either an essential element or a factor that increases damages. A party’s refusal to correct its acts after receiving a legitimate cease and desist notice can be interpreted as a sign of bad faith. Although a recipient of a cease and desist notice has every right to decline pre-litigation requests without adverse consequences, he must do so in good faith. Good faith means a reasonable belief of having the right to engage in the challenged behavior. However, this “good faith belief” will not be interpreted broadly. See, for example, Northern Light Tech., Inc. v. Northern Lights Club, 236 F.3d 57, 65 (1st Cir.2001) (approving district court's use of defendant's disregard of legitimate cease and desist letters as evidence of bad faith).

The question then becomes whether the recipient of the cease and desist letter willfully refused to comply with the law. The answer involves an inquiry into the recipient’s state of mind. In many cases there is no direct evidence of bad faith, however, the court may infer bad faith from the surrounding circumstances. Therefore, if you receive a legitimate cease and desist letter from an attorney you should either cease the challenged behavior, or seek the immediate help of a competent attorney for candid advice as to whether your behavior violates the law. You should select an attorney who is familiar with the area of law that is at issue.

If you receive a cease and desist letter from us, you can be sure that we will advice our client to seek additional remedies if the matter cannot be adequately resolved. The letter may concern copyright infringement, trademark infringement, defamation, or other Internet legal matters. Ignoring the letter is usually a bad bet, as the court may see it as a sign of bad faith. The defense side of a courtroom is not a pleasant place to be.

However, we understand that some attorneys venture into sending letters that make no legal sense. I have previously commented about cease and desist letters and how ineffective they can sometimes be. Some of these letters are so far-fetched, unrealistic, and unprofessional that many do not take them seriously. Hence, the Third Circuit Court’s decision on Green v. Fornario, 486 F.3d 100 (3rd Cir. 2007).

In Fornario, the plaintiff sent a cease and desist letter that included a threat from the attorney to refer the “conduct to the appropriate criminal authorities." The small problem: this was a trademark dispute and the Lanham Act is a purely civil statute. The big problem: lawyers should take threatening criminal prosecution very seriously. In many States, a lawyer cannot threaten criminal prosecution for the purpose of gaining an advantage in a civil case.

The Fornario court refused to find that the defendant’s refusal to cease the allegedly infringing behavior was in bad faith. Whether the court would have reached a different decision if the cease desist letter from the attorney been of better quality and without idle threats of criminal prosecution is anybody’s guess. In Northern Light Tech. the court viewed the defendant's disregard of legitimate cease and desist letters as evidence of bad faith. To reconcile the decisions probably requires an understanding of the difference between bad faith and bad cease and desist letters.

Internet Bloggers Beware: Ohio Court Lands Another Blow Against Those Engaging in Internet Defamation

djr@cyberlawyerblog.com (Cyber Lawyer) — Thu, 01 May 2008 07:06:00 GMT

I recently commented on the impact of the U.S. Court of Appeals for the Ninth Circuit Court of Appeals’ decision limiting the protections afforded to service providers under the Communications Decency Act. In that case, the court refused to provide immunity to website owners who encourage unlawful or defamatory statements. Less than a month later, the Ohio Court of Appeals also refused to protect the “interests” of bloggers and others who engage in online defamatory statements. The Ninth Circuit’s message was that if you encourage unlawful conduct, the CDA will not provide you with unwarranted solace. The Ohio Court of Appeals message is that if you post defamatory statements online, you may be sued in a State where the other party’s reputation is damaged.

In Kauffman Racing Equipment v. Roberts, a Virginia resident, Mr. Roberts, purchased an engine block on the Internet. Mr. Roberts was dissatisfied with his purchase and decided to express his dissatisfaction by posting a number of statements on various Internet websites. Kauffman Racing, a company with its main place of business in Ohio, filed a lawsuit in Ohio. Mr. Roberts moved to dismiss alleging that Ohio did not have personal jurisdiction over him. The Ohio Court of Appeals disagreed.

In applying Ohio’s long-arm statute as well as Constitutional principles, the Court held that Ohio’s long arm statute applied and that, as a result of the postings, exercising jurisdiction over Roberts established the necessary “minimum contacts” under the jurisdiction. The implications of this ruling are far reaching.

Let’s say, for example, that a blogger posts defamatory comments about an individual. An implication that the individual has engaged in misconduct, such as perjury (even if the statement is qualified by the word “allegedly”) would qualify. Let’s further assume that the defamed individual is applying for a position with a college in Virginia. Under the Kauffman Court’s reasoning, the defamed individual may sue the blogger in Virginia. This applies even if the blogger lives in the West Coast and has no intentions of ever visiting Virginia. The blogger is now exposed to liability in the Federal District Court for the Eastern District of Virginia, aka the “rocket docket,” where litigation is intense, bloggers are not particularly appreciated, and jury awards can be devastating. So go ahead, blog and defame others… at your own risk.

Internet Defamation Law - Website owners and bloggers beware - The latest interpretation of Section 230 of the Communications Decency Act

djr@cyberlawyerblog.com (Cyber Lawyer) — Sat, 05 Apr 2008 02:28:00 GMT

As a general rule, we encourage many of our clients who own or operate websites or blogs and who want to be somewhat protected from Internet defamation claims to not encourage others to post comments. We also explain to our clients the impact of Section 230 of the Communications Decency Act. The U.S. Court of Appeals for the Ninth Circuit has validated our general recommendation for a cautious approach ...

Website operators and web log (blog) owners beware - If you encourage illegal content or design your website to require users to input illegal content, you may not be afforded immunity under Section 230 of the Communications Decency Act.

On April 3, 2008, the decision of the U.S. Court of Appeals for the Ninth Circuit came down (the full text of the opinion is posted here) ... and inevitably shook the confidence of website operators and bloggers who encourage others to post comments (usually defamatory), on their website or blog.

The opinion is quite lengthy and I am still analyzing the full extent of its impact, but here are some highlights:

The court clarified a misconception that many have of the interpretation of Section 230 of the CDA:

In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete. In other words, Congress sought to immunize the removal of user generated content, not the creation of content: “[S]ection [230] provides ‘Good Samaritan’ protections from civil liability for providers . . . of an interactive computer service for actions to restrict . . . access to objectionable online material.

The Court continued:

We believe that both the immunity for passive conduits and the exception for co-developers must be given their proper scope and, to that end, we interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.

The message is clear, if you incite or "implore" others to participate in unlawful conduct, usually defamatory, the CDA will not be your savior.

Perhaps, one of the most important sections of the opinion is the following passage which creates a clear ambiguity. On one hand, plaintiffs are warned against overly litigious stances. On the other hand, the Court makes clear that if the provider becomes a participant, legal liability may result. The Court stated:

Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality
of third parties. Where it is very clear that the website directly participates in developing the alleged illegality—as it is clear here with respect to Roommate’s questions, answers and the resulting profile pages—immunity will be lost. But in cases of enhancement by implication or development by inference—such as with respect to the “Additional Comments” here—section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.

As this decision shows, the development of Internet defamation and CDA jurisprudence remain fluid. We will continue to keep you posted on the progress and the development of this as well as other Internet Law matters.

Internet Copyright Infringement - Courts Weigh-In

djr@cyberlawyerblog.com (Cyber Lawyer) — Mon, 10 Mar 2008 19:57:00 GMT

We frequently handle Internet copyright infringement issues. These issues present themselves in many forms. Some examples include: Internet copyright infringement resulting from copied website contents, Internet copyright infringement claims against ISP resulting from copied website photographs, Internet copyright infringement claims against Internet search engine from displaying copyright images as thumbnails with the indexed results, and Internet copyright infringement claim against search engine and online retailer resulting from the use of copyrighted images as thumbnails.

Internet copyright infringement decisions are far from uniform. Quite to the contrary, Internet law is one of the least predictable areas of law. However, the decisions of some courts follow:

Internet copyright infringement from copied Internet website contents

The owner of a website that sold goods and services over the Internet discovered that a competitor had copied the contents of its website and had created a rival Internet site that was a virtual mirror image if its website. The website was copied by posting identical source code at other Internet websites. The replication of the site diverted traffic and sales from the original website.

A New York federal court held that the Internet copyright infringement resulting from the copying of the website was willful and awarded statutory damages for Internet copyright infringement as well as costs and attorneys’ fees.

The Court found that the infringement was willful and awarded statutory damages with the objectives of compensating copyright owners for past infringement and deterring future infringement. The Factors considered relevant to determining an appropriate statutory damages award include the “expenses saved and profits reaped by the infringers,” the revenues lost by the plaintiff, the infringers' state of mind (wilful, knowing or merely innocent), the value of the copyright and the deterrent effect on both the defendant and others. The court also awarded attorney's fees and costs

Internet copyright infringement claims against ISP resulting from copied website photographs

The owner of an Internet website containing commercial real estate information sues an ISP for Internet copyright infringement, contributory copyright infringement, vicarious Internet copyright infringement, and challenging the applicability of the DMCA safe harbor provision to the ISP.

A Virginia federal court dismissed the claims of Internet copyright infringement, contributory copyright infringement, and vicarious copyright infringement. The DMCA safe harbor provision protected the ISP.

A provider of commercial real estate information on the Internet collected a comprehensive a comprehensive database of information on commercial real estate markets and commercial properties in the United States and the United Kingdom. The database, including photographs was available to customers through the Internet.

An Internet service provider’s (“ISP”) website allowed subscribers, generally real estate brokers, to post listings of commercial real estate on the Internet. The ISPs terms of service included a promise not to post copies of photographs without authorization. When informed of the violations, the ISP removed the photographs.

The commercial real estate provider commenced action against the ISP for copyright infringement, violation of the Lanham Act, and several state-law causes of action. A federal court in Maryland held that the ISP had not engaged in direct infringement under the Copyright Act. It left open, however, CoStar's claims that LoopNet might have contributorily infringed CoStar's copyrights and that LoopNet was not entitled to the “safe harbor” immunity provided by the Digital Millennium Copyright Act, 17 U.S.C. § 512.

The U.S. Court of Appeals held that an Internet service provider (ISP) could not be held liable as a direct copyright infringer when its facility was used by subscriber to violate copyright without intervening conduct of ISP; ISP, which provided system that automatically received subscriber's infringing material and transmitted it to Internet at instigation of subscriber, had not itself fixed copy in its system of more than transitory duration.

Internet service providers (ISPs), when passively storing material at direction of users in order to make that material available to other users upon their request, do not “copy” material in direct violation of Copyright Act. 17 U.S.C.A. § 106.

Automatic copying, storage, and transmission of copyrighted materials, when instigated by others, does not render Internet service provider (ISP) directly liable for copyright infringement; ISP can become liable indirectly upon showing of additional involvement sufficient to establish contributory or vicarious infringement, but even then may still look to Digital Millennium Copyright Act (DMCA) for safe harbor if it fulfilled conditions therein. 17 U.S.C.A. §§ 106, 501, 512.

Internet copyright infringement claim against Internet search engine from displaying copyright images as thumbnails with the indexed results

A professional photographer and owner of copyrighted images displayed on his Internet web site sued a leading Internet search engine, which displayed search results as “thumbnail” pictures, for copyright infringement.

A California federal court dismissed the claim of Internet copyright infringement. The use of copyrighted images that were displayed on Internet web sites by the search engine, which displayed search results as “thumbnail” pictures, was “fair use” of copyrighted images.

The plaintiff was a professional photographer who has copyrighted many of his images. Some of these images are located on plaintiff’s web site or other web sites with which plaintiff had a license agreement. The defendant operated an internet search engine that displayed its results in the form of small pictures rather than the more usual form of text. The defendant obtained its database of pictures by copying images from other web sites. By clicking on one of these small pictures, called “thumbnails,” the user can then view a large version of that same picture within the context of the web page.

When plaintiff discovered that his photographs were part of defendant’s search engine database, he brought a claim against defendant for copyright infringement. The court found that plaintiff had established a prima facie case of copyright infringement based on defendant’s unauthorized reproduction and display of plaintiff’s works, but that this reproduction and display constituted a non-infringing “fair use” under Section 107 of the Copyright Act.

The use of copyrighted images that were displayed on Internet web sites by operator of visual search engine, which displayed search results as “thumbnail” pictures, was “fair use” of copyrighted images; although creative nature of the copyrighted works weighed in favor of image owner, purpose and character of operator's use of works and effect of that use on potential market for or value of works weighed in favor of search engine operator. 17 U.S.C.A. § 107.

Internet copyright infringement claim against search engine and online retailer resulting from the use of copyrighted images as thumbnails

A copyright owner brought legal action major Internet search engine and Internet retailer for Internet copyright infringement resulting from the copying of copyrighted images. The copyright owner sought a preliminary injunction based on its claim of Internet copyright infringement to prevent the retailer and the search engine from copying, reproducing, distributing, displaying, or otherwise infringing, or contributing to the Internet copyright infringement of its photographs.

A California court dismissed the claim of Internet copyright infringement, held that the Internet search engine operator's display of thumbnail images of copyright owner's photographs, in response to user searches, was fair use of copyrighted photographs; operator put images to a use fundamentally different than use intended by owner, thereby providing significant benefit to the public.

A copyright owner brought legal action major Internet search engine and Internet retailer for Internet copyright infringement resulting from the copying of copyrighted images. The copyright owner sought a preliminary injunction based on its claim of Internet copyright infringement to prevent the retailer and the search engine from copying, reproducing, distributing, displaying, or otherwise infringing, or contributing to the Internet copyright infringement of its photographs.

Internet search engine operator's display of thumbnail images of copyright owner's photographs, in response to user searches, was fair use of copyrighted photographs; operator put images to a use fundamentally different than use intended by owner, thereby providing significant benefit to the public. 17 U.S.C.A. § 107.

Even if search engine users who linked to websites showing owner's copyrighted photographs automatically made “cache” copies of full size images of the works, and such action amounted to direct infringement of owner's right of reproduction, such automatic copying was fair use of copyrighted images; such copying was a transformative use, the cache copied no more than was necessary to assist the user in Internet use, and the copying had no more than a minimal effect on owner's rights, while having a considerable public benefit. 17 U.S.C.A. § 107.

Owner of copyrighted photographs was not likely to succeed on its claim of vicarious copyright infringement by Internet search engine operator that provided, to its users, links to third-party websites that reproduced, displayed, and distributed unauthorized copies of owner's images, as required for preliminary injunction prohibiting such linking; owner did not demonstrate likelihood of showing that operator had legal right to stop or limit direct infringement of third-party websites, notwithstanding agreements, through an advertising program, permitting it to terminate an entity's participation in that program, operator could not terminate third-party websites or block their ability to host and serve infringing full-size images on the Internet, and operator lacked practical ability to police the infringing activities of third-party websites.

Contact us for a professional consultation if you wish to discuss Internet copyright infringement issues or other Internet legal issues with an Internet trial attorney.

Our Interview With the BBC

djr@cyberlawyerblog.com (Cyber Lawyer) — Tue, 04 Mar 2008 04:19:00 GMT

Last Friday, I had the pleasure of being invited for an interview with reporter Alex Ritson from the BBC. I appeared on his satellite radio broadcast where we discussed issues related to Internet Defamation, the Communications Decency Act immunity, the differences between a service provider and a content provider, the Wikileaks case, and related Internet Law matters.

Peer to Peer (P2P) software is great!... until the SWAT team arrives

djr@cyberlawyerblog.com (Cyber Lawyer) — Fri, 25 Jan 2008 16:59:00 GMT

Many people install file sharing, peer-to-peer (P2P) software in their computers. The concept sounds promising, having open collaboration and open sharing of files and information between Internet users throughout the world. Unfortunately, that is not the way it usually ends.

P2P software frequently becomes a tool for copyright infringement, computer hacking, child pornography, and similar actionable conduct. Often, this conduct results in civil and/or criminal prosecution. Now, we are not discussing whether P2P software is itself a problem. There is plenty of case law discussing whether the software can be used for non-infringing uses and whether infringement is the primary purpose of the software. In fact, these points have been discussed ad nauseam by the courts and commentators. The intention here is to present a practical perspective of the issue, so that those thinking of installing and using P2P software may make a more informed decision.

Many people, perhaps out of curiosity, or maybe knowing full well what they are getting themselves into, install P2P software in their computers. Next thing, they search for songs by their favorite artists or for their favorite movies. Double click and the file is transfered to computer. The trip to Target to buy the CD or DVD is hereby canceled. This becomes an addiction for some, getting song after song, movie after movie, and in turn sharing them with other P2P users. However, people who think that their P2P acts will go unnoticed are wrong. The owner of the copyrighted works will use the same P2P software to track down and catch the infringer. The result is single mothers having to pay enormous amounts of money in damages, college students seeing their future career possibilities hampered, and some being prosecuted criminally. Not to mention that the downloaded version of your "favorite song" may contain a computer virus that may destroy your hard drive or facilitate the theft of your personal identification data and files. This addiction to P2P becomes more and more expensive.

Speaking of addictive, many use P2P software to download pornographic material. As an Internet crime defense attorney, I have spoken to people who use P2P software to download hundreds of pornographic files every day. Some download the files just to download them and never even view a large number of the downloaded files. Downloading adult pornography is not usually prosecuted, but those who download child pornography are.

These people who download a large number of files from P2P may not realize that embedded between their files are depictions of child pornography. These files are sometimes put in the "shared" folder of the P2P software for others to download.... sounds like distribution to me. The P2P user may not realize that these acts will almost certainly subject them to prosecution for receipt, possession, and distribution of child pornography. States aggressively prosecute these crimes and the federal system is merciless. We frequently defend people charged with these crimes and have the required legal and technical expertise to do so in an expert manner, but make no mistake, you can pick up serious felony charges from the comfort of your own home. By the time you hear the agents knocking on your door, your life has already changed. Is it worth it to install and use P2P software?... You decide.

Misquoted!

djr@cyberlawyerblog.com (Cyber Lawyer) — Sat, 19 Jan 2008 03:07:00 GMT

In connection with a federal court trial, we were interviewed by a reporter from a major newspaper in the Washington D.C. area. The surprise came the following day when I read an article containing the famous "one of his attorneys . . . said" line. What followed was an inaccurate post (no pun intended). I have contacted the reporter and have requested a correction. As Internet lawyers handling cases of high importance, we frequently interact with the professional press. We understand that errors could be made even by consummate professionals.

Hidden System Files May Support Criminal Prosecution

djr@cyberlawyerblog.com (Cyber Lawyer) — Sat, 29 Dec 2007 07:20:00 GMT

We recently completed an Internet crime trial. The large majority of the prosecution's evidence was found in hidden system files of a computer running Windows XP. These files could not be retrieved without the use of software not standard in Windows and which is not available to unsophisticated computer users.

It took dedication and patience to explain to the court the inner workings of hidden files such as thumbs.db. Without the ability to effectively describe the operation of the Windows XP Operating System it would have been impossible to obtain a favorable outcome for our client. Without this specialized technical competence, taking this case to trial, as opposed to pleading to whatever could be gotten from the prosecutor, would have been insane. Without expertise about computer operating systems and the Internet, it is very difficult for an attorney to be effective when trying a computer or cyber crime case.

As far as I know, we are the only Internet Law Firm that has an attorney who is also a Computer Engineer with in depth technology experience, including critical projects with the Department of Defense. We can apply our unique computer and Internet knowledge to any cyber crime matter.

Computer Hacking and Unauthorized Access to Computer Networks: Curiosity Can Kill the Cat

djr@cyberlawyerblog.com (Cyber Lawyer) — Sat, 22 Dec 2007 05:42:00 GMT

Recently, we have encountered many instances of the following scenario... Often out of curiosity, an Internet website visitor may exceed his authorized access under his access login or under the website's terms of use. Website access scripts are easily available online. Their use, however, may generate serious accusations of computer crime, specifically hacking and unauthorized access. Under cybercrime and computer laws, a conviction for computer hacking can carry 20 years to life in prison.

If you are accused of computer hacking or unauthorized access to a computer network, our computer hacking defense attorneys understand the technical aspects of the Internet and can provide you with a top tier computer hacking defense.

The importance of having a computer expert as your Internet cyber trial attorney

djr@cyberlawyerblog.com (Cyber Lawyer) — Sun, 16 Dec 2007 19:02:00 GMT

During a cyber trial, a computer crime, or a trial involving issues of Internet law, I can’t overstress the importance of having an attorney who is not only a legal subject matter expert, but also an expert in computer technology and the technical concepts related to the Internet.

Case in point, we recently completed a long and complex cyber crime trial. We were fully equipped to expertly handle the criminal defense aspects of the case, we knew the law, how to cross-examine witnesses, and how to establish reasonable doubt. However, during the trial, it was our technical expertise what allowed us to provide a unique perspective to the evidence presented.

For example, the alleged criminal activity was traced to our client’s IP address and MAC addresses. However, the documentation used by the government contained errors that only an attorney with expert Internet technology knowledge would have caught. Error number one was that one of the MAC addresses utilized by the government to justify the search warrant had one character too many, i.e., it was not valid. The other MAC address pointed to a laptop computer, but the government identified it as a router. These critical defects would have probably gone unnoticed to the eyes of the typical lawyer. Does the average attorney even know how many characters there are in a valid MAC address? I can guarantee you that the answer is no.

Another issue that came up was that the government’s evidence was mostly obtained through forensic analysis of hidden system files, such as the thumbs.db file and others. If it takes forensic analysis to even retrieve evidence that a client who is not technically sophisticated and who does not have the necessary computer forensic tools is accused of “intentionally” possessing, how can the government show intent? It took a lot of finesse, patience, and art to explain to the court how the evidence presented could have been retrieved in the first place. The typical non-technical attorney would have had a hard time understanding these concepts and attacking this evidence. I have seen cases forced to a settlement or plea that is not warranted under the circumstances simply because, although the attorney can competently argue the law, he/she can’t competently argue the technology. Our expertise includes technical degrees in Computer Engineering and years of Internet technology experience.

Microsoft Corporation Sues a Dentist for Trademark Infringement and Cybersquatting

djr@cyberlawyerblog.com (Cyber Lawyer) — Tue, 04 Dec 2007 05:51:00 GMT

The Anti-cybersquatting Consumer Protection Act (ACPA) makes those who register infringing domain names in bad faith liable to civil suits from a trademark owner.

Microsoft has filed a trademark infringement suit against a California dentist, Dr. Saed Said, who has registered more than 40 Internet domains with names similar to Microsoft’s products or brands, including: aMicrosoftShop.com, aMicrosoftStore.com, XboxOutlet.info and XboxMarket.mobi.

Microsoft claims that Dr. Said operates the domains with the intent to divert Internet surfers looking for Microsoft’s products. "The person has been diverted from the Microsoft Web site he or she was seeking to visit, and Microsoft has lost the opportunity to interact with that person," Microsoft claims in the lawsuit. According to Microsoft, Said profited from the misdirection because his Web sites contain advertising for non-Microsoft products.

We are experts in all issues related to Domain Name law and cybersquatting. If you receive a cease and desist notice or are served with a lawsuit accusing you of cybersquatting, we can provide you with the expert legal representation necessary to fight against large corporations such as Microsoft.

Internet Solicitation of a Minor - Police Entrapment in the Internet Age

djr@cyberlawyerblog.com (Cyber Lawyer) — Mon, 19 Nov 2007 03:03:00 GMT

It is becoming a common occurrence. In an Internet chat room, a minor will come in and request to chat privately with someone. Only that there is no such minor, but a police officer typing away through the night. Many have followed the bait. As the chat with the "minor" progresses, the conversation turns sexual in nature. After some chatting, the minor suggests a meeting in person.... setting up the police sting operation.

At this point, the psychology of Internet chatting comes in. Only a few subjects will actually attempt to meet this "minor." The large majority of chatters have no real interest or desire to actually meet a minor. We have had clients that have chatted with "minors" but utterly refused meeting them. Despite this refusal, the police will obtain a warrant for the person's arrest for several felony charges. The police will also confiscate the person's computers. In the absence of specialized legal representation, the presumption against bond may keep the person in jail for several months awaiting trial. A conviction may mean several years of jail time and lifetime registration as a sex offender, together with the social opprobrium associated with that term.

A person accused of this type of conduct requires the expertise of an attorney who not only understands criminal defense but also has the technical expertise to understand the underlying Internet technology. Cybercrime defense is the the area of Internet law where attorneys claiming to be super lawyers but lacking substance and relevant courtroom success will not excel. Similarly, old school criminal defense lawyers with no technical expertise will be unable to effectively question Internet evidence.

Our Internet sex crime defense team consists of a Computer Engineer and associated attorneys. We have effectively defended these crimes and have a unique track record and expertise.

Internet Defamation can cost you.... to the tune of $11.3 M

djr@cyberlawyerblog.com (Cyber Lawyer) — Fri, 16 Nov 2007 18:46:00 GMT

Internet blogs continue to create litigation. The days when the courts would not intervene in matters involving Internet defamation resulting from Internet blog postings are behind us. Recently, a Florida woman was awarded $11.3 million dollars in damages resulting from postings made by a Louisiana woman accusing the Florida woman of being a "crook", a "con artist" and a "fraud."

The defendant in that case was not represented by counsel at the time the verdict was issued. Although it appears that in this case, the Defendant was affected by Hurricane Katrina in a manner that affected her ability to defend herself, the situation brings up a significant issue. Many misunderstand the impact and importance of Internet defamation accusations. The result can be financially devastating.

Bloggers and cyber gripers run a significant risk when they post their statements online. There is no such thing as a completely "anonymous" blog post. A competent Internet defamation lawyer who knows the technical aspects of the Internet and knows how to properly utilize the legal process can discover the identity of the author. At that point, the author must be prepared to utilize the services of a competent attorney to provide expert legal defense.

For more information regarding Internet defamation, please visit our Internet defamation website at www.cyberdefamationlawyer.com or our main Internet law website at http://www.cyberinternetlawyer.com

Single mother ordered to pay $222,000 in Internet copyright infringement damages

djr@cyberlawyerblog.com (Cyber Lawyer) — Mon, 08 Oct 2007 05:31:00 GMT

A Minnesota federal jury found Jammie Thomas guilty of copyright infringement. She now owes a total of $222,000.00 in damages to the RIAA. The copyright damages are based on the jury's valuation of $9,250 for each infringed recording. Under copyright laws, RIAA might have recovered up to $150,000 per song infringed.

This judgment can potentially shake up the way the P2P copyright infringement litigation game is played. The defense had some questionable moves, or lack thereof. Of note is that the defense relied almost exclusively on the theory that some hacker might have used Ms. Thomas' usual user name and her computer without her knowledge. Was it lack of knowledge of the technology involved, lack of knowledge of how to properly defend an Internet copyright infringement case, overconfidence, etc?

The lesson learned is that if you are accused of online copyright infringement or involved in any other Internet law related litigation, you are best served to seek the assistance of competent counsel. Competent counsel will not only claim to practice Internet Law, but will also have a proven successful litigation record as well as a technical resume that demonstrates in-depth knowledge of the complicated technological aspects of these matters.

ICANN fails to pass domain name WHOIS registry privacy reforms

djr@cyberlawyerblog.com (Cyber Lawyer) — Mon, 10 Sep 2007 04:00:00 GMT

The Internet Corporation for Assigned Names and Numbers (ICANN) failed to overcome a stalemate on its efforts to reform the way that domain names WHOIS data is handled. The WHOIS registry contains the names, address, and contact information of Internet domain name registrants. The information contained in the registry is public, with the exception of domain names with proxy registration.

Businesses, law enforcement, and especially Intellectual Property and Internet Lawyers regularly utilize the domain names WHOIS registry to identify cybersquatters, spammers, phishers, trademark infringers, copyright infringers, and others. However, the WHOIS registry is also open to abuse and can potentially expose domain name registrants to spam as well as Internet privacy violations. ICANN’s attempts to reform the WHOIS system to balance the ability to identify cyber wrongdoers against privacy concerns have failed.

Several proposals failed to gain acceptance. For example, under a proposal called the “Operational Point of Contact”, domain name registrars would continue collecting contact information from domain name registrants. However, domain name registrants would have been required to keep certain information shielded from public access with certain exceptions. Defining these exceptions was fatal for this proposal.

A different proposal included shielding the contact information of individual domain registrants but not the information of commercial registrants. The difficulty of determining whether a domain name registrant was “commercial” proved fatal for this proposal.

These proposals, as well as others failed and an acceptable compromise between the needs for privacy and the need for identification was not reached. In the foreseeable future, the only mechanism available to domain name registrants who choose to remain anonymous is to purchase proxy registrations from the domain name registrars.

Cyber Lawyer, Domingo J. Rivera, is an attorney specialized in Internet Law and domain name law cases throughout the United States.

The Eastern District of Pennsylvania helps keep the DMCA and the Computer Fraud and Abuse Act from continuing to be misused.

djr@cyberlawyerblog.com (Cyber Lawyer) — Sun, 05 Aug 2007 04:35:00 GMT

The DMCA and the Computer Fraud and Abuse Act are two of the most widely misused Internet related laws. From doctors trying to use the DMCA to shut down a website containing photos of the website owner’s body portraying potential medical malpractice to websites containing “ Terms of Use” which prohibit competitors from even viewing the website, these Internet Laws are being abused.

The latest incident occurred when a law firm was accused of violating the DMCA and the Computer Fraud and Abuse Act when it used the “Way Back Machine” to recover old Web pages of its client's opposing party. Obviously, the firm’s intent was to use the pages to defend its client. The pages were made available only to other lawyers at the law firm. At the time the law firm retrieved the web pages, there no protective measures in regard to the archived pages.

Judge Kelly put a stop to this abuse of Cyber laws. He stated that "It would be an absurd result if an attorney defending a client against charges of trademark and copyright infringement was not allowed to view and copy publicly available material, especially material that his client was alleged to have infringed." Judge Kelly also added that the law firm "was justified in viewing and printing as many versions of the website as necessary to show that the material had been made public. More importantly . . . the material was relevant evidence in the Underlying Litigation, and the firm had a duty to preserve relevant evidence."

I am sure that the abusive use of the DMCA and the Computer Fraud and Abuse Act will continue, but in a federal court in Pennsylvania, Judge Kelly made the right decision. The text of the opinion can be found at: http://www.paed.uscourts.gov/documents/opinions/07D0852P.pdf

Cyber Lawyer, Domingo J. Rivera, is an attorney specialized in Internet Law, handling cases throughout the United States.

Website development contracts: The “handshake deal” can cost you.

djr@cyberlawyerblog.com (Cyber Lawyer) — Mon, 23 Jul 2007 02:20:00 GMT

Under U.S. copyright laws, the developer of a website owns the intellectual property and copyrightable elements of the website. The copyrightable elements of a website include the text, graphics, scripts, code, and the “look and feel.” Unless there is a contract to the contrary, the website developer’s client only obtains a non-exclusive license to utilize the intellectual property that it paid to develop. Even the copyright notice on the client’s website applies only to the contents that were developed by the client and not to the contents that were created by the developer.

This means that under the default scenario, your business’ website developer can create a very similar website for your competitors. Furthermore, at the end of your business’ relationship with the website developer, the website developer can also demand that you stop using its intellectual property and copyrightable contents. If you refuse, you may find yourself as the defendant in a copyright infringement lawsuit. Even worse, your website developer may refuse to facilitate your business’ transition to a new developer. If your business depends on its website, it may never recover from this website hijacking scheme commonly applied by some unscrupulous website developers.

You should be aware of the risks associated with the absence of a carefully drafted website development agreement and should consult with an Internet Attorney before hiring others to develop your website.

Cyber Lawyer, Domingo J. Rivera, is an attorney specialized in Internet Law, handling cases throughout the United States.

Your website’s Privacy Policy: Draft carefully and always abide by it.

djr@cyberlawyerblog.com (Cyber Lawyer) — Sun, 15 Jul 2007 22:43:00 GMT

Almost every e-Commerce website collects personal identifiable information from its users. Personal identifiable information includes name, address, e-mail address, phone number, social security number, date of birth, age, gender, income, occupation, browsing patterns, etc. Many websites have a posted privacy policy explaining what information is collected from the users of the website and how the information is used.

Once a company posts a privacy policy on its website, it will be held legally liable for its failure to abide by the policy. For example, Geocities’ website contained the statement “we will never give your information to anyone without your permission.” However, when it appeared that Geocities sold and disclosed the information to others, the FTC accused Geocities of misrepresenting its reasons for collecting information from adults and children. The matter eventually settled.

So with such a big risk, why should companies even post a privacy policy at all? After all, it is impossible to violate a privacy policy that does not exist. However, some jurisdictions require websites to have posted privacy policies.

For example, the California Online Privacy Protection Act requires websites to 1) identify the categories of information collected and with whom the information may be shared; 2) describe how to review and change the personally identifiable information; 3) explain how to find out about changes to the privacy policy; and 4) indicate the effective date of the privacy policy. Additionally, websites that collect information from children are subject to the requirements of the Children’s Online Privacy Protection Act (COPPA). The European Union also imposes privacy protection requirements for websites who operate in or have customers in the European Union.

Therefore, if your website obtains business from California residents, children, or the European Union, you must have a carefully drafted privacy policy and must abide by it.

Cyber Lawyer, Domingo J. Rivera, is an attorney specialized in Internet Law, handling cases throughout the United States.