Communications Decency Act Update: A CDA Defense Can Be Raised in a Rule 12(b)(6) Motion to Dismiss

Two recent decisions have eliminated questions about a defendant’s ability to use the Communications Decency Act (CDA) to obtain a quick dismissal of a lawsuit. Federal rules permit a defendant, under certain circumstances, to get an immediate dismissal of a lawsuit, without every being required to file an “answer” to the complaint, make any disclosures, or engage in any discovery. Winning such a “motion to dismiss” cuts off a lawsuit at its knees, immediately eliminating the costs and risks associated with the suit.
One of the bases on which a motion to dismiss can be brought is “failure to state a claim on which relief can be granted” — a Federal Rules of Procedure “Rule 12(b)(6)” motion. In general, a Rule 12(b)(6) motion can only be used if the complaint is so defective that the plaintiff’s allegations against the defendant, even if true, would not qualify for any form of relief from the court. For example, a complaint for common-law fraud would be dismissed on a Rule 12(b)(6) motion if it failed to allege that the defendant made a false statement that the plaintiff actually relied on — because to get damages for a false statement made by a plaintiff, the defendant must have actually relied on that false statement.
Internet service providers have often used Rule 12(b)(6) to obtain dismissal of suits brought against then for their publication of third-party material by successfully asserting that the Communications Decency Act (47 U.S.C. § 230) barred the claim. However, a recent ruling from the Ninth Circuit threatened to overturn this practice. In a May 7, 2009 opinion in Barnes v. Yahoo!, Inc., __ F.3d___, 2009 WL 1232367 (9th Cir. 2009), the Ninth Circuit stated that “section 230(c) provides an affirmative defense” and that [t]he assertion of an affirmative defense does not mean that the plaintiff has failed to state a claim, and therefore does not by itself justify dismissal under Rule 12(b)(6).” The proper procedure, according to the opinion, was for the defendant Yahoo to have filed answer asserting its CDA defense, and then to have filed a motion to dismiss under Federal Rule of Procedure 12(c) — a motion for judgment on the pleadings.
A Rule 12(c) motion can’t be filed until all the pleadings are “settled” — i.e., after the complaint and all answers have been filed, and all Rule 12(b) motions resolved. This might not occur until many months after a suit is filed. Following the procedure suggested by the Ninth Circuit would have forced Yahoo to start making unwanted disclosures in its answer and possibly under federal automatic disclosure and discovery rules, and to have continued to burn through cash defending the suit.
When I first read this portion of the Ninth Circuit opinion on Barnes v. Yahoo, it struck me as a little odd. Every litigator knows that courts don’t like to waste time with obviously meritless suits and that courts often will grant a motion to dismiss if the plaintiff’s allegations reveal the presence of an affirmative defense that would bar the case from proceeding. The most common example would be if the allegations in the complaint show that the claim is barred by the statute of limitations. I have participated in successfully bringing several such motions.

Update on CFAA Circuit Split: District Courts in 8th Circuit Adopt Minority View, Permitting Claims Where Defendant Exceeds His Authority to Access Computer

We have been watching closely the development of a Circuit split over whether Computer Fraud and Abuse Act (CFAA) – 18 U.S.C. § 1030 — claims can be brought against persons who have been given authority to access a computer, but then exceed the scope of this authority. The 7th Circuit holds that an employee has accessed his employer’s computer “without authorization” and can be sued under CFAA, if he uses legitimately-acquired access rights to advance an interest that is adverse to his employer. A recent ruling by a District Court in the Eastern District of Missouri, in Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing & Consulting LLC, confirms that courts in the 8th Circuit are lining up behind this minority viewpoint.

The Lasco Foods case involves a common litigation scenario in which an executive has left a company to start a competing business. The defendants, Shaw and Hall, were long-time Lasco sales executives. Both were allegedly provided Lasco-owned laptops for use in company business. According to the complaint, in 2008, Shaw and Hall decided to start a competing business. Both before and after Lasco became aware of this new business, but which they were still Lasco employees, the defendants allegedly “accessed, printed, copied and/or downloaded” a substantial amount of data from their laptops, as well as Lasco’s network. Among this data allegedly was customer contact information stored in Shaw’s Outlook “Contacts” file. Shaw allegedly deleted the Contacts file from his laptop before returning it to Lasco — thus depriving the company of customer information that it had paid to develop. See Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing & Consulting LLC, E.D.Missouri, No. 4:08-cv-01683, Third Amended Complaint (May 15, 2009).

Several state law remedies address what we will call the “absconding executive” situation, including interference with business relations, conversion, and trespass to chattels causes of action. However, companies have often attempted to sue absconding executives under CFAA, as well.

CFAA Section (a)(5) contains three provisions that permit suits against persons who knowingly access a “protected computer” and intentionally or recklessly cause damage. (A protected computer includes any computer which is used in interstate or foreign communication. 18 U.S.C. § 1030(e)(2). In today’s internet age, it includes just about every computer in the country.) However, each of these three provisions require that the defendant have accessed the computer “without authorization.” Therein lies the rub. As discussed in our September 24 and October 1 posts, the federal courts are divided on when an employee’s access to a computer is “without authorization.” The majority position, which was recently adopted by the 9th Circuit, is that “without authorization” only refers to persons who do not have permission to access the company’s computer in the first place. LVRC Holdings, Inc. v. Brekka, 9th Circuit, Case No. 07-17116 (Sept. 15, 2009). Under this interpretation, Shaw and Hall could not be sued under CFAA, because they had originally received permission from Lasco to access its computers.

We have been watching closely the development of a Circuit split over whether Computer Fraud and Abuse Act (CFAA) – 18 U.S.C. § 1030 — claims can be brought against persons who have been given authority to access a computer, but then exceed the scope of this authority. The 7th Circuit holds that an employee has accessed his employer’s computer “without authorization” and can be sued under CFAA, if he uses legitimately-acquired access rights to advance an interest that is adverse to his employer. A recent ruling by a District Court in the Eastern District of Missouri, in Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing & Consulting LLC, confirms that courts in the 8th Circuit are lining up behind this minority viewpoint.

The Lasco Foods case involves a common litigation scenario in which an executive has left a company to start a competing business. The defendants, Shaw and Hall, were long-time Lasco sales executives. Both were allegedly provided Lasco-owned laptops for use in company business. According to the complaint, in 2008, Shaw and Hall decided to start a competing business. Both before and after Lasco became aware of this new business, but which they were still Lasco employees, the defendants allegedly “accessed, printed, copied and/or downloaded” a substantial amount of data from their laptops, as well as Lasco’s network. Among this data allegedly was customer contact information stored in Shaw’s Outlook “Contacts” file. Shaw allegedly deleted the Contacts file from his laptop before returning it to Lasco — thus depriving the company of customer information that it had paid to develop. See Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing & Consulting LLC, E.D.Missouri, No. 4:08-cv-01683, Third Amended Complaint (May 15, 2009).

Several state law remedies address what we will call the “absconding executive” situation, including interference with business relations, conversion, and trespass to chattels causes of action. However, companies have often attempted to sue absconding executives under CFAA, as well.

CFAA Section (a)(5) contains three provisions that permit suits against persons who knowingly access a “protected computer” and intentionally or recklessly cause damage. (A protected computer includes any computer which is used in interstate or foreign communication. 18 U.S.C. § 1030(e)(2). In today’s internet age, it includes just about every computer in the country.) However, each of these three provisions require that the defendant have accessed the computer “without authorization.” Therein lies the rub. As discussed in our September 24 and October 1 posts, the federal courts are divided on when an employee’s access to a computer is “without authorization.” The majority position, which was recently adopted by the 9th Circuit, is that “without authorization” only refers to persons who do not have permission to access the company’s computer in the first place. LVRC Holdings, Inc. v. Brekka, 9th Circuit, Case No. 07-17116 (Sept. 15, 2009). Under this interpretation, Shaw and Hall could not be sued under CFAA, because they had originally received permission from Lasco to access its computers.

Court Finds that File-Sharing Site Can Be Entitled to DMCA Safe Harbor

In another case involving Veoh.com, a federal judge has again rebuffed an attempt by a copyright-holder to claim that the safe harbors of the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 512) do not protect the video file-sharing site.UMG Recordings, Inc. v. Veoh Networks, Inc., 2008 WL 5423841 (C.D. Cal. 2008).

The Veoh website includes videos supplied by Veoh’s content partners and permits visitors to access large library of commercial television shows and movies. Veoh also permits users to upload their own video content. While Veoh has policies against uploading copyrighted material, copyright holders have alleged that users can, at least temporarily, circumvent Veoh’s measures — with the result that copyrighted music and videos are distributed to other users.

In response to suits from such copyright holders, Veoh has claimed qualified immunity under the DMCA. The DMCA, provides several safe harbors for digital media service providers, including limited immunity for infringing information “residing on systems or networks at direction of users.” (fn1)

In UMG Recordings v. Veoh, copyright holder UMG Recordings, Inc. claimed that Veoh cannot take advantage of this safe harbor because Veoh performs several functions on user-uploaded videos that are not “storage” and are not “undertaken at the direction of a user.” (fn2) These included: (1) creating “Flash-formatted” copies of the uploaded videos; (2) creating “chunked” versions of the uploaded videos; (3) allowing users to access videos via streaming; and (4) allowing users to download whole video files.

In his December 28, 2008 ruling, the judge started with the key assumption that all the activities cited by UMG amounted to “software functions directed toward facilitating access to materials stored at the direction of users.” (fn3) Then, focusing on the precise wording of the DMCA, the judge noted that the provision of the DMCA in question — 17 USC §512(c) — doesn’t state that safe harbor protection is only available for “storing” information. Rather Section 512(c) states that limited immunity is available for infringement “by reason of” or “as a result of” such storage. The judge stated that “when copyrighted material is displayed or distributed on Veoh, it is ‘as a result of’ or ‘attributable to’ the fact that users uploaded the content to Veoh’s servers.” (fn4)

 

DMCA Take-Down Notices with Little Detail on the Identity and Location of Infringing Material Are Often Found to Be Insufficient

If you are thinking about issuing a take-down notice to a website on which you have found material that infringes your copyright, make sure that you include sufficient detail on the identity and location of the infringing works. The case law indicates that the courts are taking an increasingly Arminian view (i.e., demanding “sinless perfection) of the detail that must be provided in a take-down notice to meet the Digital Millennium Copyright Act’s (DMCA) “substantial compliance” rule. 17 U.S.C. § 512(3).

The text of the DMCA provides that a take down notice must provide “information reasonably sufficient to permit the service provider to locate the material.” However, in many cases Court have ruled that to be effective take-down notices must identify the specific location of each infringing copy of a work. For example in Hendrickson v. eBay, Inc., 165 F. Supp.2d 1082 (C.D. Cal. 2001), in which the plaintiff claimed that eBay was permitting the sale of pirated copies of a movie on its site, the Court indicated that the plaintiff needed to “include the specific item numbers of the listings that are allegedly offering pirated copies of Manson for sale.”

There is one prominent case in which a plaintiff was allowed to take a shortcut in specifying the location of pirated material on a website — ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619 (4th Cir. 2001). However, the facts of this case are somewhat unusual — and do not represent the standard infringement scenario typically encountered when dealing with the interactive websites common today. The plaintiff, ALS, was in the business of creating and marketing adult photographs, and held the copyright for these photographs. The defendant, RemarQ, was an internet service provider that also hosted 30,000 newsgroups. Two of the newsgroups hosted by RemarQ actually included ALS’s name in their title: “alt.als” and “alt.bniaries.pictures.erotica.als.” Both of these newsgroups contained hundreds of ALS-copyrighted photographs.

ALS sent RemarQ a take-down notice that referenced these newsgroups, stated that they were created for the sole purpose of violating its copyrights and trademarks and demanded that RemarQ cease carrying the newsgroups. RemarQ refused to remove the newsgroups, but agreed to removed individual postings that infringed ALS’s copyright if ALS identified them “with sufficient specificity.” Id. at 621. ALS sued RemarQ, which defended by claiming that ALS had not substantially complied with the DMCA take-down notice standard and also that RemarQ had no knowledge of the alleged infringement. RemarQ argued that ALS had never provided it with a “representative list” of the infringing photographs and never identified that photos with sufficient detail for RemarQ to remove them.

The Fourth Circuit disagreed. It found that because ALS had identified the two sites “created for the sole purpose of publishing ALS’s copyrighted works”, asserted that “virtually” all the images on the sites were its copyrighted material, and referred RemarQ to the specific addresses of the website — this was sufficient. Id. at 625 (emphasis added).
However, in the modern world of interactive media, the circumstances that occurred in ALS v. RemarQ will be rarely repeated. Often, a copyright holder will find its works scattered in snippets throughout hundreds of thousands or millions of files on a website. In such cases, a take-down notice that fails to state the locations where the infringing materials can be found is likely to be found insufficient.

For example, in Arista Records, Inc. v. MP3Board, Inc., 2002 WL 1997918 (S.D.N.Y. 2002), the court examined the substantial compliance of three different take-down notices sent by the RIAA to a file-sharing site that provided users with links to other sites where pirated copies of copyrighted music were located. In the first two notices, the RIAA merely listed artists whose work was allegedly being infringed and asked MP3Board to remove links to these works. In the third notice, the RIAA named 21 artists and song titles which were representative of the works being infringed and attached printouts of MP3Board screen shots on which the RIAA indentified 662 links to infringing material.

The Court found that the first two notices fell far short of substantial compliance with the DMCA take-down notice rules. However, the third notice was sufficient because it “identified the material or activity claimed to be infringing and provided information sufficient to permit MP3Board to locate the links.” Id. at *9.

Recent cases have continued to find take-down notices non-compliant where they have failed to easily permit a service provider to locate the infringing material — such as Perfect 10 v. CCBill LLC, 481 F.3d 751 (9th Cir. 2007). The adverse consequences of failing to craft a sufficient take-down notice can be substantial, including having your subsequent suit for copyright infringement dismissed or even opening up yourself to a counter-suit for misrepresentation under 17 U.S.C. § 512(e)(2). So it is important to take the time to make sure that you get your take-down notice right.

If you have any questions about the sufficiency or effect of a take-down notice you wish to send or have received, feel free to contact me or a member of JMBM’s intellectual property practice group.

Are interactive websites “developers” of all information they require users to provide in online profiles?

Is a digital media website the “developer” of all information that it requires users to include in on-line profiles? The disturbing answer, according to a recent court opinion, is “yes.”

In a May 22, 2009 ruling, Judge Schell of the Eastern District of Texas dismissed a complaint for negligence, gross negligence and strict products liability against MySpace brought by on behalf of a 15 year old girl who was assaulted by a person whom she met on MySpace.com. See Doe IX v. MySpace, Inc., United States District Court, Eastern District of Texas, No. 4:08-CV-140 (Order granting motion to dismiss). The plaintiff claimed that MySpace was negligent for “refusing to employ reasonable safety features on its website.” Order at 2. The plaintiff also argued that MySpace was not entitled to Communications Decency Act immunity because it provided prompts to assist users in creating profiles and thus was a co-developer of the profiles. Presumably the criminal who assaulted the plaintiff had been assisted by these prompts in creating the profile through which he met the plaintiff. Id.

The court rejected both of these arguments. On the first claim, the Court held that in effect the claim was attempting to hold MySpace liable for publishing information furnished by another information content provider. “Failing to employ reason safety features” means much the same thing as negligently deciding whether or not to publish a particular profile — a traditional function of a publisher. Id. at 2.

On the second claim, the plaintiff argued that MySpace was a co-developer of the profiles on its sites because when a user creates a profile, MySpace prompts the user to enter additional information about “Interests & Personality”, “Name”, “Basic Info”, Background and Lifestyle,” Schools,” Companies,” Networking,” and “Song & Video on Profile.” The plaintiff claimed that the use of such prompts in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) was held to make a website a developer of information on the profile. Id. at 3.

The judge rejected this claim, because “[t]he Ninth Circuit repeatedly stated throughout its en banc opinion that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, an (sic) information content provider.” Because MySpace users are not required to provide any additional information, MySpace is not an information content provider. Order at 3.

The result in this case is not out of line with prior decisions on the Communications Decency Act. However, I do take issue with his reasoning in finding the MySpace was not a co-developer of its user profiles. While it is true that inRoommate, users were required to enter certain information in profiles, it was not this factor alone that made Roommate a developer of the information on those profiles. After all, many interactive websites require a user to enter basic information such as the user’s name, email address and gender. Rather, the problem for Roommate was that the information it required users to provider was found to be discriminatory. As the Ninth Circuit noted: “Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business.” Fair Housing Council, 521 U.S. F.3d at 1166.

The real issue for ISP liability should be whether it is culpable in eliciting the illegal content from a third party. As long as an ISP provides neutral tools to assist users in creating and searching for content — as MySpace appears to have done here — then it should get Communications Decency Act protection as not being the publisher or speaker of this material. On the other hand, if a website encourages users to post illegal material, that is a different story.

Did Recent Decisions on the Scope of Immunity under the Communications Decency Act Inform Craigslist’s Decision to Modify Its Site?

Ninth Circuit

A May 7, 2009 ruling by the Ninth Circuit means that digital media companies will have to be careful about what they say when dealing with a complaint about an offending post. In another of a series of recent cases that have begun to find limits in the “immunity” provided by the Communications Decency Act, on May 7, 2009, a Ninth Circuit three-judge panel held that the CDA provides no protection to an internet service provider who promises, but then fails, to remove content provided by a third party.

Barnes v. Yahoo!, Inc. __ F.3d___, 2009 WL 1232367 (9th Cir. 2009) concerned an alleged fact situation in which after the breakup of their relations, the plaintiff’s boyfriend began to post profiles regarding the plaintiff (Barnes) on Yahoo websites and in Yahoo chatrooms. These posts contained nude photos of the plaintiff, a solicitation to engage in sexual intercourse and provided the address and phone number at her place of employment. Before long, Barnes was peppered with emails, phone calls and personal visits, “all in expectation of sex.” 2009 WL 1232367 at *1. A virtual repeat of Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003).

Barnes sent Yahoo several formal requests for the takedown of the posts. Nothing happened. Then, the day before a local news outlet was preparing to broadcast a report on the incident, Yahoo’s director of communications called Barnes, asked her to fax directly the previous statements she had mailed and told Barnes that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.” 2009 WL 1232367 at *1.

Barnes claims that she relied on this statement and took no further action on the profiles. However, apparently still failing to get any action, two months later Barnes filed this suit against Yahoo. Shortly thereafter, the profiles disappeared. Id.

Barnes sued Yahoo under two causes of action: (i) negligent undertaking, and (ii) promissory estoppel. “Negligent undertaking” is based on the principal that if you decide to help someone else out, as a Good Samaritan, to protect their person or things, you are subject to liability if you act negligently. “Promissory estoppel” is based on the idea that if you make a promise, with the intent that a third party rely on it, you can be held liable if you fail to perform that promise.

In response to Barnes’ complaint, Yahoo argued that it was immune from liability under the Communications Decency Act (47 U.S.C. § 230(c)). The Ninth Circuit agreed as to the negligent undertaking claim, but not as to promissory estoppel. The difference for the Court was the nature of the specific act on which Yahoo was being sued under the two legal theories — Yahoo’s failure to take down the posts v. Yahoo’s failure to keep its promise to take down the posts.

Lasco Foods v. Hall and Shaw: Can an Employee Be Liable Under Federal Wiretap

Judge Jean Hamilton’s recent order in Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing & Consulting, LLC, E.D. Missouri (October 26, 2009) held that an ex-employee who accesses information on a company-issued laptop for a purpose adverse to the company can be liable under the federal Stored Communications Act (SCA). Judge Hamilton’s ruling also suggests that even current employees can be held liable under the SCA as well, if they access information from a laptop for a purpose that violates their duty of loyalty to the company.

This ruling is important, because the SCA provides for criminal penalties, as well civil actions, against offenders. 18 U.S.C. §§ 2701(b), 2707. Tens of millions of U.S. employees are issued company-owned laptops, and countless employees download information from these computers for purposes adverse to their former employer’s interests, both during and after leaving the company. Under Judge Hamilton’s ruling, many thousands of these employees theoretically stand in jeopardy of federal prison time.

But is Judge Hamilton’s ruling right? At least one other recent ruling suggests that the SCA cannot be used in this situation at all. See Thule Towing Systems, LLC v. McNallie, E.D.Mich., No. 2:09-cv-10905, Order (July 15, 2009). Other case law suggests that the SCA only reaches employees who access to emails and other communications stored on company-owned computers has been expressly revoked.

Judge Hamilton’s decision was based on SCA Section 2701, which provides that “whoever (1) intentionally accesses without authorization a facility through which an electronics communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such a system shall be punished as provided in subsection (b) of this section.” 18 U.S.C. § 2701(a).

Here, Lasco had alleged that the defendants, Shaw and Hall, were long-time Lasco sales executives and had been provided with company laptops for use in company business. In 2008, Shaw and Hall decided to start a competing restaurant food supply. Both before and after Lasco became aware of this new business, but which they were still Lasco employees, the defendants allegedly “accessed, printed, copied and/or downloaded” a substantial amount of data from their laptops, as well as from Lasco’s network, for use in their competing business. See Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing & Consulting LLC, E.D.Missouri, No. 4:08-cv-01683, Third Amended Complaint (May 15, 2009).

Using principles of agency laws, Judge Hamilton reasoned as follows:

“While Lasco afforded Defendants access to its computers, networks and information for purposes of their employment, Lasco alleged that Hall and Shaw accessed Lasco’s Information to benefit the interests of Defendants, not Lasco. Defendant Hall and Shaw’s authorization to access this information ceased when they breached their duty of loyalty to Lasco and their employment terminated” (emphasis added).

Chinese Search Engine Suit Proceeds Against Register.com

A federal court will permit Baidu, Inc., a leading Chinese search engine company, to sue Register.com for gross negligence, recklessness, and breach of contract.

The lawsuit arose after a hacker took over Baidu’s Register.com account and interrupted its service for two days in January 2010. Among other things, the hacker redirected Baidu’s users to the Web site of the Iranian Cyber Army. Baidu claimed the hacker wrested control of Baidu’s account as a result of errors made by Register.com’s tech support Internet “chat” staff. According to the complaint: ”Although the Intruder gave the Rep an incorrect response to [a] security question, the Rep nonetheless proceeded with processing the Intruder’s request to change Baidu’s email address; [and] [w]hen the Intruder sent the Rep a bogus security code, the Rep did not notice that it was the wrong code, apparently because the Rep didn’t even bother to check it against the original security code.” The Intruder then allegedly changed the password and hacked into Baidu’s account. Baidu claimed injury to its reputation and business totaling “millions” of dollars.

Register.com moved to dismiss the complaint, asserting a “Limitation of Liability” clause from its Master Services Agreement with Baidu. Among other things, the clause provided that Register. com “will not be liable, under any circumstances, for any (a) termination, suspension, loss, or modification of … Services, (b) use of or the inability to use the Service(s), (c) interruption of business, (d) access delays or access interruptions to this site or a service ….”

Judge Denny Chin of the US District Court for the Southern District of New York held that Register’s contractual limitation of liability clause did not shield the company from allegations of gross negligence and willful misconduct. The Judge held that while limitation of liability clauses are generally enforceable, “an exculpatory agreement … will not exonerate a party from liability under all circumstances. Under announced public policy, it will not apply to exemption of willful or grossly negligent acts [citation omitted].” The opinion notes that if Baidu proves its allegations, “then Register failed to follow its own security protocols and essentially handed over control of Baidu’s account to an unauthorized Intruder….”

The judge ordered a pre-trial conference for August 11th.

Copyright Claims of Foreign Authors Violates the First Amendment

A number of press reports have given the impression that the Colorado District Court’s ruling in Golan v. Holder  means that that Federal laws reviving expired copyrights violate First Amendment protections on free speech. The actual ruling is far narrower.

In 1993, Congress enacted 17 U.S.C. Section 104A, to permit foreign authors whose copyrights had fallen into the public domain for technical reasons (such as by failing to renew the copyright with the U.S. Copyright Office) to restore their copyrights. Section 104A solely permitted “restoration” of copyright protection for works from “a nation other than the United States.”  Section 104A was added after the United States joined the Berne Convention for the Protection of Literary and Artistic Works — a treaty first enacted in 1886, but not joined by the U.S. until 1988. Article 18 of the Convention requires member nations to provide copyright protections to works by foreign authors so long as the term of protection in the country of origin has not expired as to the work.

The plaintiffs were U.S. artists who used works by foreign artists that had been in the public domain before 1994, such as Sergei Prokofiev’s “Peter and the Wolf.” The plaintiffs claimed that after Section 104A was enacted, they were subjected to higher performance fees, sheet music rentals and other royalties. In some cases, these costs were prohibitive.

The Golan case was the brainchild of Stanford Law professor, founder and co-director of the Center for Internet and Society and Director of the Fair Use Project, Lawrence Lessig. The original complaint claimed that Section 104A shrunk the public domain and thereby violated the limitations on congressional power inherent in the Copyright Clause, and violated First Amendment rights to free expression. The Colorado District Court originally rejected these claims. However, on appeal, the Tenth Circuit found that a legitimate First Amendment claim existed and remanded the case for First Amendment analysis.

The basis for the Tenth Circuit’s ruling was the U.S. Supreme Court ruling in Eldred v. Ashcroft , in which the Supreme Court stated that a Congressional act modifying copyright law might be subject to First Amendment scrutiny if it “altered the traditional contours of copyright protection.” While the Tenth Circuit could not find federal authority that explained the phrase “traditional contours”, it concluded that the traditional contours of copyright protection included the principle that “works in the public domain remain there.”  It based this on the notion that the general sequence is that copyrighted works has always progressed from “1) creation; 2) to copyright; 3) to the public domain” and that Section 104A changed this sequence.

The Manifesto of the Swedish Pirate Party: A Sweeping Rollback of Intellectual Property Rights

Sweden’s Pirate Party, which hoists a stylized version of the mast a pirate ship as its logo, surprised many by winning at least one, and possibly as many as two seats in the parliament of the European Union. The party, which came in third among Swedish parties, captured a stunning 12% of Swedish male voters, but only 4% of female voters. The Pirate Party was founded in Sweden as an advocacy group for what might loosely be called internet freedom, or the rights of consumers to freely engage in file-sharing. The party grew slowly until the Pirate Bay trial in April of this year, after which membership quadrupled, although there is evidence that it may be now leveling off.

What are the Pirate Party’s political goals? According to its “Declaration of Principles”, the Pirate Party wants nothing less than a sweeping rollback of the intellectual property rights currently held by the copyright and patent holders. Here are the major elements of the Party platform:

Curtail state and private powers to conduct surveillance on citizens:

According to the Declaration, “[e]ach citizen must be guaranteed the right to anonymity . . . and the right of the individual to control use of his or her personal data must be strengthened.” Consistent with this principle, the Party opposes “special legislation for terror-related crimes”, because these “nullify due process, and risk being used as a repressive tool against immigrants and dissidents.”

The Party also wants a “general communications secrets act.” According to the Declaration: “Just as it is prohibited to read someone else’s mail, it shall be forbidden to read or access e-mail, SMS or other forms of messages, regardless of the underlying technology or who the operator may be. . . . Employers shall only be allowed to access an employee’s messages if this is absolutely necessary to secure the[ir] technological functionality or in direct connection with the employee’s work-related duties. The government shall only be allowed access in the case of a firm suspicion of a crime being committed by said citizen . . .”

Reduce copyright protections

Citing the vast storehouses of orphaned copyrighted material held by media companies, the Declaration urges changes in laws to make such material available to the general public. However, the changes it proposes go far beyond what would be necessary to achieve this goal and would create laws that encourage consumer copying and use of “protected” materials.