Domingo Rivera Cyber Lawyer Blog

Internet lawyer Domingo Rivera blog on cyber law topics

The Way back machine data may be admissible to support a conviction

Way back machine data admitted in Court - Domingo J. Rivera
The Wayback Machine, located at is a web site that enables you to see what a particular Web site looked like at some time in the past, from 1996 to the present.  At the Wayback Machine site, you can search for and link to the past version of many web sites as they were at various "snapshots" in time.  ...
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Summary Judgment Is... Summary Judgment

Recently, a question came up regarding one of my previous cases.  I have claimed that I obtained summary judgment in a case involving computer fraud and abuse and computer trespass in the Arkansas Federal Courts.  I also explained that, according to the presiding judge, this was the first case of its kind heard in the U.S. District Court ...
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Wordpress Malware - Command and Control and Advertisements

​This is a post about malware that can be injected into the Wordpress CMS, the article is written by attorney Domingo J. Rivera .  Wordpress is an easy to use and very popular content management system (CMS).  Currently, it powers the majority of all Internet sites.  As such, it is a target of exploitation, and probably not a di...
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Attorney Domingo Rivera Chosen as one of the "Top 100 Trial Lawyers"

Domingo J. Rivera was selected as one of the Top 100 Trial Lawyers by the National Trial Lawyers Association. Membership into The National Trial Lawyers Association is by invitation only and is limited to the Top 100 Trial Lawyers from each state.

Selection for The National Trial Lawyers Association is extended to civil plaintiff and criminal defense attorneys by special invitation. Candidates are considered for membership in The National Trial Lawyers Association based on superior qualifications, leadership, reputation, influence, stature, and profile in the Trial Lawyer community.

It is considered a great professional achievement to be selected for The National Trial Lawyers: Top 100. Mr. Rivera was first attorney in the United States to obtain a major victory after a jury trial against the FBI and the DOJ in an case involving criminal copyright infringement allegations. The client was accused of being the leader of the world's most prolific music piracy group. The case began in the United States District Court for the Eastern District of Virginia and was decided in the USDC for the Southern District of Texas.

Mr. Rivera has obtained Summary Judgment in Federal cases involving computer trespass including the first civil case based on the Computer Fraud and Abuse Act and the Stored Communications Act decided by the Arkansas Federal Court.

Attorney Domingo Rivera has also obtained Summary Judgment in Federal cases involving online defamation, trademark infringement, invasion of privacy. Also obtained Summary Judgment involving online defamation and trademark infringement in the USDC for the Middle District of Florida.
Has won cases involving Internet defamation in several State and Federal Court cases after hotly contested trials.

Mr Rivera regularly teaches CLEs to other attorneys on Internet law matters and has published scholarly articles in widely published legal publications regarding issues related to Internet law and Internet defamation. Mr. Rivera is also one of the few attorneys holding Information Security Certifications, including the prestigious CISSP, GPEN, GCIH, GSLC, CEH. Of those, is also one of the select few with vast experience defending highly sensitive computer networks.

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Internet and Cyber Law Practice Areas

Some of Our Areas of Practice Include:

We can provide you with knowledge and assistance of Internet Law.  You may need the services of an Internet Lawyer because someone has infringed your copyright by copying contents of your website or by unauthorized posting of your Intellectual Property.  Perhaps your trademark is being infringed by the registrant of a domain name or the operator of a website.  Maybe the infringement is hidden in metatags, title tags, or anchor links...You may be the victim of Internet defamation or accused of a cyber crime.   Your business may need to prepare or respond to an Internet law cease and desist notice.

You may be in the process of starting an Internet business, negotiating your website development or hosting agreement, drafting your affiliate agreements, privacy policy, terms of use.  Your business may also be interested in having an attorney with knowledge of Internet Law to review your website for compliance with the law and to help keep you from litigating.   If you or your business has any Internet legal issues, the importance of having an Internet technical expert as your Internet trial lawyer cannot be overstressed. Whatever your Internet law questions are, Domingo J. Rivera and his team are your cyber lawyer, Internet business attorney, and Internet intellectual property law firm.

Domingo J. Rivera has unique Internet lawyer qualifications. For example, based on our research, attorney Domingo J. Rivera is the only Internet lawyer who has a background in Computer Engineering, an MBA, and experience with critical projects with the U.S. Defense as well as a wealth of knowledge in computer forensics.  He has also tried a vast number of civil and criminal cases and has highly polished practical courtroom skills.  Sometimes, it is not about being the largest Internet Law firm, but about being smart and well-qualified.

Domingo Rivera, Internet Lawyer, has appeared as lead counsel in Internet cases throughout the Nation including Virginia, California, Arizona, Arkansas, and Texas... Although admitted to practice law in Virginia, he has appeared in Internet Law cases in a pro hac vice capacity, allowing clients throughout the Nation to obtain quality representation for Internet Law matters.  In addition to Virginia, Mr. Rivera is also admitted in the Arkansas Federal Courts and in the United States District Court for the Southern District of Texas.

Domingo Rivera utilizes his Internet Lawyer skills to assist businesses and individuals with all issues related to Internet Law in the United States and internationally and has represented clients located in England (U.K.), and various European countries.  We are your Internet Law counsel when you have Internet Law Issues, including:

Internet Copyright Infringement - Our Internet copyright Infringement attorneys can assist you if:

  • Your website contents are stolen
  • You received a copyright infringement cease and desist letter
  • You need a copyright infringement cease and desist letter sent
  • Your website is taken down as a result of a DMCA takedown request
  • You are be involved in copyright infringement litigation
  • You are arrested and accused of criminal violations of copyright laws, including conspiracy to commit copyright infringement

Internet Trademark Infringement - As an Internet Law firm, we are experts in trademark infringement matters, and can assist you with matters involving:

  • Bad faith domain name registration in violation of trademark rights
  • Cybersquatting issues
  • Cyber piracy
  • Internet trademark infringement in website meta-tags
  • Internet trademark Infringement in search engine advertisement keywords
  • Internet trademark infringement litigation
  • Use of your trademark to defame your business commercially or to promote a competitor

Internet Defamation - Our Internet defamation attorneys can provide expert assistance when:

  • Defamatory posts in and Internet blog or Internet forum damage your reputation or your business
  • Libel being spread through the use of the Internet affects you
  • Competitors attempt to gain an advantage by defaming you online
  • Defamatory statements on the Internet prevent you from advancing your career
  • Internet defamation litigation
  • False and libelous statements posted in online "ratings" websites
  • and more....

Cyber Crime Defense and civil liability under the Computer Crimes Act - Our Internet crimes defense attorneys can protect your rights when you are accused of:

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Cybersecurity: Stuck Between Advanced Hackers, Government Regulators, and Liability

Cyber attacks occur every second of every day. The frequency and sophistication of the attacks
continues to rise. With the increased sophistication and the proliferation of corporate espionage and nation-state actors, the days of curious teen hackers trying to prove their worth are behind us.  Now the threat is bigger and better financed, the stakes are higher, and government intervention changes the landscape. Cybersecurity is now a top priority for businesses and government.

We start with a brief summary of some of the recent major cyber attacks. This list is purposely kept short as to show only the more “elite” type of attacks that are shaping the new cyber landscape.  Given their level of sophistication, these attacks frequently require in-depth analysis by computer forensics experts.  Here, we are focusing on the legal aspects only.

Timeline of Advanced Cyber Attacks

Advanced Cyber Attacks of 2010: One Word: STUXNET

Stuxnet makes clear that cyber attacks have escalated to new heights. The Stuxnet worm damaged Iranian uranium enrichment centrifuges. Stuxnet temporarily knocked out some of the
centrifuges at Iran's Natanz nuclear facility. This caused a delay to Iran’s uranium enrichment program.  This attack was very effective and stealthy, giving birth to the new cyber warfare.

Advanced Attacks of 2011

China: Its “Comment Group” penetrated the Diablo Canyon nuclear plant operated by Pacific Gas & Electric Co. The breach was reportedly facilitated through a breach of a senior nuclear planner’s computer. There is no indication of intent to damage the target.  Reconnaissance is the name of the game, no need to break it if you can own it.

Canada: The Canadian government reported a major cyber attack against its agencies, including Defence Research and Development Canada, a research agency for Canada's Department of National Defence.  This particular attack forced the Finance Department and Treasury Board, Canada’s main economic agencies, to disconnect from the Internet.

US Department of Defense, July 2011: in a speech unveiling the Department of Defense’s cyber strategy, the US Deputy Secretary of Defense mentioned that a defense contractor was hacked and 24,000 files from the Department of Defense were stolen.

The Nitro Attacks: Through trickery and social engineering, attackers tricked users into downloading Poison Ivy, an off the shelf Trojan. This was a targeted attack directed at at companies involved in the research, development and manufacture of chemicals and advanced materials. After the compromise, the attackers issued instructions to the compromised computers, looking for passwords and data exfiltration.

Duqu Trojan: Industrial Control Systems (ICS) are compromised by the Duqu remote access Trojan (RAT).  Its purpose was to steal data. However, RATs can also be used to control the systems. If you don’t believe that this is a serious threat, think of nuclear power plants and imagine what could happen.

Advanced Attacks of 2012

Saudi Aramco: A destructive Trojan horse (the kind that steals data and then wipes files), Shamoon, is allegedly used in an attack that disabled thousands of computers at Saudi Aramco, the national oil company of Saudi Arabia. The attack wiped the hard drives of 55,000 computers or 75% of Aramco’s corporate computers.

Flame: Another Iran related malware and a very sophisticated one. Flame is believed to have caused data loss incidents at Iran's oil ministry. The alleged use of the malware was to collect intelligence about Iran's computer networks that would facilitate future cyberattacks on computers used in Iran’s nuclear fuel enrichment program.

U.S. Natural Gas Pipelines: The Industrial Control Systems Cyber Emergency Response Team (ICS-CERT), U.S. Department of Homeland Security, issued an alert warning of ongoing cyber attacks against networks of U.S. natural gas pipeline companies. The alert stated that the campaign involved narrowly focused spear-phishing scams targeting employees of the pipeline companies. The alert urged utilities to monitor Internet-facing control systems for activity by hackers attempting to gain remote access through brute force authentication attacks.

U.S. Banks: Distributed Denial of Service (DDOS) attacks were launched against U.S. Banks, including Citigroup, Wells Fargo, Bank of America, and U.S. Bank. The U.S. accused Iran of staging these attacks and Defense Secretary Leon Panetta warns of potential for a "cyber Pearl Harbor" against critical infrastructure. Panetta also called for new protection standards.

Red October Returns: Kaspersky discovered a worldwide Red October attack. Red October had been around since at least 2007. Attackers gathered information through vulnerabilities in Microsoft’s Word and Excel. The malware collected information from government embassies, research firms, military installations, energy providers, nuclear and other critical infrastructures.

Early 2013 Cyber Attacks: 2013 Is The Year The Government Gets Serious

South Korea: South Korean financial institutions as well as the Korean broadcaster YTN had their networks infected in an incident said to resemble past cyber efforts by North Korea.

The list goes on and on. As it should be obvious by now, cyber attacks, particularly those by sophisticated attackers and nation-states can be very dangerous to business and society. While money is a motivator, the exfiltration of valuable data has become a major issue. There is also the potential threat to life and business. With that in mind, the government is in the process of drafting and enacting sweeping cybersecurity laws and regulations.

Congress failed to reach a consensus on cybersecurity legislation. Following that, in early 2013,
President Obama issued a cybersecurity Executive Order 13636 to enhance the security of the critical infrastructure of the United States.

A very raw outline of Executive Order 13636 is as follows:

What? (Purpose): Help owners and operators “identify, assess and manage cyber risks”
Who? : NIST will coordinate development of “Cybersecurity Framework”
End Result: “Voluntary consensus-based standards and industry best practices”
But? (Caveats): Participation is voluntary but the Framework will most likely be used to judge a company’s cybersecurity practices. For example, Sec. 7(b) states that it “shall include guidance for measuring the performance of an entity in implementing” the Framework.

The Executive Order requires federal agencies to share information about cyber threats and to work with the private sector to develop a cybersecurity framework to protect the critical infrastructure. For now, participation is voluntary and the Executive Order requires federal agencies to develop incentives for private sector adoption of the framework. Our guess is that some of the recommendations included in the develop framework would eventually be seen as the exercise of due care by the courts when determining liability for cybersecurity breaches.

Cyber Intel Notices: The Executive Order provides for the issuance of Catastrophic Target Notices. These notices identify “where a cybersecurity incident could reasonably result in catastrophic regional or national effects.” It is unclear how the notices may affect a business in the determination of due diligence. You can fore
see a case where a Court would decide that DHS put the company on notice of a cybersecurity vulnerability an
d that the company had the o
bligation to act in accordance with this notice. A party may have a difficult time challenging the validity of the notice, given that the information may have been derived from classified sources.  Whether the Cyber Intel notices will became a source of notice for due care determination remains to be seen. However, we are getting guidance on how the Courts are leaning regarding cybersecurity due care issues. ''

An example is the case of Patco Construction Co. v. People’s United Bank, 684 F.3d 197 (1st
Cir. 2012). The events occurred in 2009. During a one week period, a bank in Maine authorized fraudulent electronic withdrawals from Patco Construction’s account. The bank’s cybersecurity system had flagged the transactions as high-risk. However, the attackers were able to answer the account security questions and the transactions were allowed. Patco Construction filed suit against the bank alleging that the bank’s cybersecurity practices were not “commercially reasonable” under Article 4A of the UCC.

The bank was successful in obtaining Summary Judgment. In December 2012, the United States Court of Appeals for the First Circuit reversed, holding that by the authentication scheme utilizing the security questions for every transaction exposed the bank’s customers to increased risk. The Court recognized that malware often logs keystrokes. The bank had a duty to monitor the suspicious transactions that had been flagged by its cybersecurity engine or provide notice to Patco Construction. In other words, the Court of Appeals decided that the bank’s cyber security practices were not “commercially reasonable.”

Not unexpectedly, the FTC already filed a case against HTC, a manufacturer of smartphones and other devices.  The case is In the Matter of HTC America Inc., FTC File No. 122 3049. The case stems from multiple flaws and vulnerabilities in mobile devices that HTC created or failed to remediate.

Some of the faults identified include:

1. Permission re-delegation vulnerabilities in its preinstalled applications. According to the FTC, HTC’s custom voice recorder could be exploited to allow third-party access to the device's microphone without the user’s consent. This flaw could allow an attacker to record conversations, track a user’s location, or perpetrate other fraud.

2. Carrier IQ implementation: According to the FTC, In order to assist carriers in their implementation of the Carrier IQ diagnostic software, HTC developed a “CIQ Interface” that would pass the necessary information to the Carrier IQ software. HTC used an insecure communications mechanism which allowed third-party applications on the user's device to communicate with the CIQ Interface.

The FTC and HTC entered into a settlement. Under the terms of the settlement, HTC must patch the vulnerabilities and establish a comprehensive security program. HTC must also undergo independent security assessments every other year for the next 20 years and is prohibited from making false or misleading statements about the security and privacy of consumers' data on its devices.

We will continue to keep you informed of the latest issues arising from cyber security, cyber threats, government regulation of cyberspace as well as what it all means to your business.

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Anonymous Internet Cowards and Public Interest Law Firms

In our efforts to identify the authors of defamatory contents targeting our clients, we utilize many methods.  Sometimes we issue subpoenas, but that is not all we do.  Our Internet law firm stands out for our use of technology to assist our clients, methods that, in my experience, most lawyers don't even understand.   Will the evidence be admissible?  I submit to you that it does not really matter.  Once the target is identified, if litigation results our client will be entitled to issue discovery, which will need to be answered under oath.  If the target lies, we will have enough to impeach this person in front of a jury.  As a technology guy, I find this more effective (and absolutely less boring) than writing sleep-inducing legal briefs.   By the time these briefs are filed, we have often identified the author through technology.

Now, some people who get these subpoenas are faced with a choice, fight the subpoena or try to work it out.  So, they seek advice from "Uncle Google", where they may find some of the aforementioned briefs filed by certain "public interest" law firms contesting the subpoenas.  Due to my results-oriented approach and lack of interest in useless debate, I have refrained from posting what happened in these cases.  Rest assured, we got what we wanted and the subpoenas were moot as unnecessary.  Lesson learned: to the extent permitted by law, we will use technology to stay ahead of dinosaur law firms.  This is important, because whether you are Dr. M.L. posting about a fellow doctor, D.A. from San Francisco, Dr. J.E. posting about a newly graduated surgeon, or a school teacher from Florida posting during working hours at the taxpayer's expense, it is very likely that we will get to you, legal briefs or not.   (Note that the initials were used to protect the identities of those involved, at least for the time being).

Now, what about the First Amendment?  We all know that opinions regarding matters of public interest are protected.  If someone writes about a doctor (or any other business or professional) claiming to be a patient (or customer), do we take that at face value?  Are we so naive? 

Let's take an example.  Look at the post below:

Now, some of these well-intentioned but naive "public interest" attorneys may claim that this is protected opinion.  On the face of the post, they are probably right. 

Now, true story... what if the post was traced to a surgeon who was never a patient?   Even my naive "public interest" friends may agree that we have a problem here.   If the premise that there was a "surgery" is false, is this really an opinion protected by the First Amendment?  Really?

This is only an example.  The attorneys who participated in my recent Internet defamation CLE saw more examples, and I can write a book with the stuff I have seen.  Recently, we had a heated court argument in Virginia regarding the need to reveal the identity of an anonymous poster.  Fortunately, we prevailed.  When the answer came back, the author was a competing doctor.  Do you see a pattern here?  What if I cited 20 more examples (which would be only a fraction of what we have seen)?

From my experience, I have no sympathy for people who hide behind anonymity to trash others.  It is just not an honorable and honest thing to do.  If you are a real patient or a customer with a gripe, you can simply attempt to resolve the issue like people of character do.   If you can't, then express yourself all you want and stand by what you said.  Unfortunately, cowards don't do that.  If you don't lie about material facts, you will probably be safe from a lawsuit.   

The real "chilling effect" of the situation is that if Courts do not require the identity of the poster to be revealed because the statement on its face is only an "opinion", how can you protect yourself from being defamed on the Internet?  The doctor in the post pictured above may have had her career as a surgeon shattered before it began.  Perhaps, courts should require disclosure under seal to protect all involved and to determine the course moving forward.   In the meantime, the fight against Internet defamation using all legal means, whether conventional or not, will continue.  To the "public interest" law firms, we appreciate your briefs, even if naive.
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Domain Names With Geographic Designations - Trademark Law

Domain name disputes and domain name litigation are important areas of Internet law.  Sometimes an individual registers a domain name containing a a geographic designation, such as the name of a city.  Whether the domain name owner enjoys trademark protection depends on certain elements.  What if the domain name registered includes the name of a foreign city and the foreign city prevails in a UDRP proceeding?  Can the domain name owner sue in court in the U.S.?
Under United States trademark law, a geographic designation can obtain trademark protection if that designation acquires secondary meaning. Lanham Trade-Mark Act, § 2(e)(2), as amended, 15 U.S.C.A. § 1052(e)(2).  Registration and use of a name with a geographic designation is not unlawful, even if the public did not associate the name with anything other than city itself, and the city council could not obtain trademark interest in purely descriptive geographical designation. Lanham Trade-Mark Act, §§ 2(e)(2), 32, 45, as amended, 15 U.S.C.A. §§ 1052(e)(2), 1114, 1127.

Domain names are issued pursuant to contractual arrangements under which the registrant agrees to a dispute resolution process, known as the Uniform Domain Name Dispute Resolution Policy ( UDRP), which is designed to resolve a large number of disputes involving domain names, but this process is not intended to interfere with or modify any independent resolution by a court of competent jurisdiction. Lanham Trade-Mark Act, §§ 32, 45, as amended, 15 U.S.C.A. §§ 1114, 1127. The Uniform Domain Name Dispute Resolution Policy ( UDRP) does not unify the law of trademarks among the nations served by the Internet; rather, it forms part of a contractual policy developed by Internet Corporation for Assigned Names and Numbers (ICANN) for use by registrars in administering the issuance and transfer of domain names; indeed, it explicitly anticipates that judicial proceedings will continue under various nations' laws applicable to the parties. Lanham Trade-Mark Act, §§ 32, 45, as amended, 15 U.S.C.A. §§ 1114, 1127.

The Anticybersquatting Consumer Protection Act (ACPA) authorizes a suit by a domain name registrant whose domain name has been suspended, disabled or transferred under that reasonable policy, including the Uniform Domain Name Dispute Resolution Policy ( UDRP), to seek a declaration that the registrant's registration and use of the domain name involves no violation of the Lanham Act as well as an injunction returning the domain name. Lanham Trade-Mark Act, §§ 32, 45, as amended, 15 U.S.C.A. §§ 1114, 1127.  A World Intellectual Property Organization (WIPO) proceeding is relevant to an Internet domain name registration claim, but it is not jurisdictional; indeed, a WIPO panelist's decision is not even entitled to deference on the merits. Lanham Trade-Mark Act, § 32(2)(D)(v), as amended, 15 U.S.C.A. § 1114(2)(D)(v).

Any decision made by a panel under the Uniform Domain Name Dispute Resolution Policy (UDRP) is no more than an agreed-upon administration that is not given any deference under the Anticybersquatting Consumer Protection Act (ACPA); to the contrary, because a UDRP decision is susceptible of being grounded on principles foreign or hostile to American law, the ACPA authorizes reversing a panel decision if such a result is called for by application of the Lanham Act. Lanham Trade-Mark Act, §§ 32, 45, as amended, 15 U.S.C.A. §§ 1114, 1127.

Therefore, an action brought in a United States court by a United States corporation involving a domain name administered by a United States registrar to determine whether registration or use of a domain name violated the Anticybersquatting Consumer Protection Act (ACPA) was required to be adjudicated according to United States trademark law under the Lanham Act, not foreign law; such resolution also was consistent with fundamental doctrine of territoriality upon which trademark law was based, since both United States and Spain had long adhered to Paris Convention for Protection of Industrial Property. Lanham Trade-Mark Act, § 32(2)(D)(v), as amended, 15 U.S.C.A. § 1114(2)(D)(v).

United States courts do not entertain actions seeking to enforce trademark rights that exist only under foreign law.  To establish a right to relief against an “overreaching trademark owner” under the reverse hijacking provision of the Anticybersquatting Consumer Protection Act (ACPA), a plaintiff must establish that: (1) it is a domain name registrant; (2) its domain name was suspended, disabled, or transferred under a policy implemented by a registrar; (3) the owner of the mark that prompted the domain name to be suspended, disabled, or transferred has notice of the action by service or otherwise; and (4) the plaintiff's registration or use of the domain name is not unlawful under the Lanham Act, as amended. Lanham Trade-Mark Act, § 32, as amended, 15 U.S.C.A. § 1114.
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Copyright Law: Pornographers Following RIAA's Shakedown Tactics

At this Internet law firm, we are no strangers to copyright litigation.  From whether website reviews are copyrightable to defending individuals caught in the RIAA's use of the Department of Justice to do RIAA's litigation in the form of criminal copyright infringement prosecutions.   Now the pornographers are here and they are taking a page out of the RIAA's playbook.  It appears that the pornographers' strategy is to file lawsuits against unidentified parties, issue subpoenas and follow up with threatening letters to the identified individuals demanding payment of a few thousand dollars.  These individuals are accused of utilizing bit torrent software to infringe on the copyrights.  Multiply the $2k to $3k requested from each identified "John Doe" times a few hundred defendants in several jurisdictions and the pornographers can feasibly make more money through lawsuits than through selling their product.

To further the strategy, pornographer Patrick Collins filed an action in the U.S. District Court for the Eastern District of Virginia against 58 different unidentified (John Doe) defendants.  The case is
Civil Action No: 3:11CV531.  We were retained by one of the "John Doe" Defendants.  We identified a number of problems with Plaintiff's case, not the least of which is the joinder of totally unrelated parties on the same litigation.  After seeing this situation, we filed a Motion to Quash on behalf of our client.  Some excerpts of the filing follow below:

Over the past several years, copyright owners across the nation, even those such as Plaintiff, who is yet to receive a copyright registration for its hardcore pornography, have attempted to take advantage of federal joinder rules in order to sue numerous John Doe defendants within a single complaint. These complaints are for copyright infringement via the Internet, and the complaints generally allege the use of peer-to-peer programs such as BitTorrent to download and/or upload copyrighted works. Some of these cases attempt to join defendants by the dozens, but many extend to hundreds and even thousands of unnamed defendants. See infra. Some courts have opined that the rationale for the joinder of multiple defendants in these copyright cases is an attempt by plaintiffs to “identify hundreds of Doe defendants through pre- service discovery and facilitate mass settlement.” See, for example, On the Cheap, LLC v. Does 1-5011, Case No. C10-4472, *11 (Zimmerman, M.J.) (N.D. Cal. Sept 6, 2011) (quoting IO Group, Inc. v. Does 1-435, 2011 U.S. Dist. LEXIS 14123, *9 (N.D. Cal. Feb. 3, 2011)).

Doe Defendant notes that this is not Plaintiff's first mass-defendant copyright infringement lawsuit. For example, a similar copyright infringement suit regarding a different pornographic video was filed by Plaintiff in the Northern District of West Virginia against 281 John Doe defendants. In that case, all John Doe defendants except for John Doe 1 were severed on the basis of misjoinder, and subpoenas for the identities of the severed defendants were quashed. See Patrick Collins, Inc. v. Does 1-281, Case No. 3:10-cv-00091, *3-4 (Bailey, J.) (N.D. W.V. Dec 16, 2010). It appears that after failing in West Virginia, Plaintiff now asserts similar claims before this Court.


Under the Federal Rules of Civil Procedure, joinder of defendants is appropriate where two factors are met: 1) “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and 2) “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). If it is clear that misjoinder has occurred, then Fed. R. Civ. P. 21 permits a court, by a party’s motion or
sua sponte, to drop parties or to sever claims. “On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.” Fed. R. Civ. P. 21.




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Attorney Domingo J. Rivera wins Summary Judgment in Computer Trespass Case

In another pioneer decision, attorney Domingo J. Rivera obtained summary judgment in a case involving an ex-husband accessing his wife's email and social network accounts without authorization. 

There has been some discussion in the news about a Michigan man that criminally charged with with accessing his wife's computer accounts.   Some commentators have argued that utilizing the computer hacking statutes to prosecute these acts is overreaching, but so far, the courts have provided little guidance on this issue.

Many Federal and State computer crime statutes provide not only criminal, but also civil remedies for the victims.  Recently, attorney Domingo Rivera handled one of these civil cases.   As is the case for many pioneering cases handled by attorney Domingo Rivera, this was a case that other attorneys expressed doubt about and that opposing counsel openly minimized. 

In this case, the opposing party claimed that the divorce property settlement agreement barred our client's claims and filed a counterclaim against our client for breach of the agreement.  We also obtained summary judgment dismissing this claim against our client.

The Court not only agreed with the legal argument advance by attorney Domingo Rivera, but also granted summary judgment.   Obtaining summary judgment means that we prevailed as a matter of law and that a trial to establish liability was not necessary.   The Court expertly discussed the standard for summary judgment:

In determining whether summary judgment is appropriate, the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat’l. Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). The Court must review the facts in a light most favorable to the party opposing a motion for summary judgment and give that party the benefit of any inferences that logically can be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998) (citing Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983)).
Once the moving party demonstrates that the record does not disclose a genuine dispute on a material fact, the non-moving party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial. Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998)(citing Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir. 1981)). In order for there to be a genuine issue of material fact, the non-moving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Furthermore, “[w]here the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th Cir. 1996)(quoting Crain v. Bd. of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir. 1990)).

The Court then moved on to the respective arguments of the parties, attorney Domingo Rivera represented the Plaintiff.  The Court explained:

III. Plaintiff’s Claims
As a threshold matter, Defendant claims that Plaintiff is barred from bringing her claims by the terms of the Property Settlement Agreement (the “Agreement”) signed by both parties as a part of the parties’ divorce proceeding. Defendant’s counterclaim alleges that Plaintiff is in breach of contract for bringing the present claims. In signing the Agreement, both parties acknowledged that they had been represented by counsel prior to executing the Agreement. “Settlement agreements are contracts subject to the general rules of contract construction.” Hill v. Southside Public Schools, 688 F.Supp. 493, 497 (E.D. Ark. 1988) (quoting N.L.R.B. v. Superior Forwarding, Inc., 762 F.2d 695, 697 (8th Cir. 1985)). The Court is to construe any agreement to give effect to the intent of the parties. Id. The intent of the parties is determined by reviewing the language of the contract itself, as well as by considering “the circumstances surrounding the making of the contract, its subject, and the situation and relation of the parties at the time of its making.” Id. (quoting Louisiana-Nevada Transit Co. V. Woods, 393 F. Supp. 177, 184 (W.D. Ark. 1975)).
The Agreement was meant to settle any and all claims related to the divorce proceeding. It strains logic to infer that the parties’ intended to waive the ability to bring any and all claims, including federal claims that could not have been litigated in a state divorce proceeding, that could ever potentially arise between the parties. Taking into consideration the fact that the parties were forming and signing the agreement in the context of a divorce proceeding; the subject and purpose of the agreement was to settle issues “arising out of this [divorce] litigation”. (Doc. 8, p. 11, ex. A). The fact that the divorce proceeding took place in state court that would not have jurisdiction over many of the claims Plaintiff now raises, can only lead the Court to conclude that Plaintiff did not waive her ability to bring the instant claims. While the alleged conduct may have taken place prior to and during the pendency of the divorce proceedings, the Court does not find Plaintiff’s claims to be intertwined with the Agreement such that she would now be precluded from bringing her claims in federal court.
Defendant also argues that Plaintiff is precluded from bringing her claims because the court presiding over the custody proceeding admitted the materials that he accessed into evidence. A court’s admission of materials into evidence is not relevant to the issues currently before the court. The judge in that proceeding made no determination as to the merits of the present claims. As Defendant points out, Plaintiff may have been able to appeal the decision to admit the evidence, but she also has the independent ability to pursue separate claims in this Court. For these reasons, the Court finds that Plaintiff is entitled to Summary Judgment on Defendant’s Counterclaim, and her motion as to the counterclaim (doc. 22) is GRANTED.
Finally, the Court explored the applicability of the Stored Communications Act and the State Computer Trespass statutes:

ii. Federal Stored Communications Act (SCA)
The relevant section of the SCA provides that whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility; and thereby obtains . . . access to a wire or electronic communication while it is in electronic storage in such system shall be punished . . .” 18 U.S.C. § 2701(a). The statute allows for private causes of action where “any person” injured by a violati
on of the SCA can show that the person viola
ting the Act acted with a
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Are Website User Reviews Copyrightable?

Are Website User Reviews Copyrightable? by Domingo J. Rivera , Esq.

review sites continue to gain popularity. Users can find a website where they can review just about anything. From whether
they like the breakfast bar at a particular hotel to their Toyota's
breaking capabilities (or lack thereof), from whether their obstetrician is friendly
enough to whether their plastic surgeon made their nose a bit too
pointy. If an Internet user wants the world informed of his or her
every interaction with the outside world, there is a platform out
there to accommodate that.


question is, are these reviews copyrightable material. If they are,
the author grants a license to publish these materials to the website
and can generally revoke this license. What happens if the original
author demands removal of the review? Can the website refuse to do
so without incurring potential liability for copyright infringement ?
The answer depends on whether these reviews are copyrightable in the
first place and involves an Internet law question. In my opinion, they are. You do not need to be John
Grisham to copyright your writings.

to the notes of committee on the Judiciary (1976) for 17 U.S.C. §
102, “[t]he phrase 'original works of authorship,' which is
purposely left undefined, is intended to incorporate without change
the standard of originality established by the courts under the
present copyright statute. This standard does not include
requirements of novelty, ingenuity, or esthetic merit, and there is
no intention to enlarge the standard of copyright protection to
require them.” Additionally, regarding the nature of copyright,
the notes further state that “[c]opyright does not preclude others
from using the ideas or information revealed by the author's work. It
pertains to the literary, musical, graphic, or artistic form in which
the author expressed intellectual concepts” (emphasis added).


is well-established that facts cannot be copyrighted. Rather, the
United States Supreme Court has held that “[t]he copyright is
limited to those aspects of the work—termed 'expression'—that
display the stamp of the author's originality.” Harper Row,
Publishers Inc v. Nation Enterprises
, 471 U.S. 539, 547, 105 S.Ct.
2218, 85 L.Ed.2d 588 (1985). However, “[c]reation of a nonfiction
work, even a compilation of pure fact, entails originality.” Id.

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

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
he 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.

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







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It has been quite a while since my previous post.  I have been extremely busy assisting my clients with Internet legal mattersInternet 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

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. 

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

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.

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

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.

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

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.

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Internet Copyright Infringement - Courts Weigh-In

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, distributi
ng, 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.
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Our Interview With the BBC

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. 

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

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.

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Hidden System Files May Support Criminal Prosecution

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.

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