Stanford Center for Internet and Society

In October 2008, David Kernell was indicted in federal court in the Eastern District of Tennessee. The grand jury charged him with gaining unauthorized access to the personal e-mail account of Alaska Governor Sara Palin, changing the password to the account, and making screenshots of e-mails and personal information found in the account, including e-mail addresses of family members, pictures, a cell phone number, and Governor Palin’s Yahoo address book. The indictment also alleges that Kernell posted the new password and screenshots to a public website, giving the public access to the account. Kernell was charged under 18 U.S.C. § 2701 and 18 U.S.C. §1030(a)(2), for intentionally and without authorization accessing a protected computer by means of an interstate communication and thereby obtaining information.

Defendant Chaffee appealed a Rhode Island District Court decision granting summary judgment to Plaintiff CoxCom, Inc. The District Court held that that Chaffee violated the Cable Communications Policy Act of 1984 Section 553 and the Digital Millennium Copyright Act by selling cable filters to cable customers and marketing them as a technology to avoid being charged for pay-per-view purchases. The filters interfered with signals from the customer’s digital cable box, thereby preventing the cable company from receiving pay-per-view billing information. On appeal, Chaffee argued that summary judgment was improperly granted, that CoxCom lacked standing to sue, and that damages and injunctive relief were improperly granted. The United States court of Appeals for the First Circuit affirmed the District Court on all issues.

In the District of Minnesota, several recording companies including Capitol, Sony BMG, and Warner Bros. sued defendant Jammie Thomas for copyright infringement. The suit alleged that the defendant had illegally downloaded and distributed the plaintiffs' copyrighted sound recordings using peer-to-peer file-sharing software. The case went to trial, and the jury found for the plaintiffs, awarding $222,000 in damages. Following a careful review of the relevant statutes, legislative history, and case law, however, the court decided that a jury instruction that too broadly defined the concept of distribution had been erroneous and required a new trial. At the end of its opinion, the court called on Congress to standardize the range of peer-to-peer liability and damages.

On October 9, 2008, a federal district court in New York dismissed a class action complaint brought by consumers against major record companies for alleged violations of Section 1 of the Sherman Antitrust Act and various state laws in conspiring to fix prices of digital music, both in CD format and Internet downloads. Applying the new standard articulated by the Supreme Court in the antitrust case of Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007), the district court found that the plaintiffs failed to allege facts demonstrating that a conspiracy among the defendants, which included Sony, Capitol, EMI, Virgin, and Time Warner, was sufficiently plausible to survive a motion to dismiss.

A United States district court has granted Freetech, Inc.’s ("Freetech") motion for a protective order against 17 subpoenas served on Freetech’s distributors by satellite television broadcaster Echostar Satellite LLC ("Echostar"). The subpoenas sought the identity and contact information of each of Freetech’s customers that purchased a Free-to-Air receiver which was capable of being modified to decrypt Echostar’s satellite signals without its authorization. Echostar argued that such contact information would assist it in proving, in the main proceedings, that Freetech violated the Digital Millennium Copyright Act and the Communications Act. The court held that the information sought would not help Echostar prove its claims, and that the burden and intrusiveness to Freetech’s customers was too high to justify disclosure, especially in light of alternative methods of sourcing more relevant information.

The Third Circuit once again struck down the Child Online Protection Act (COPA), holding that since the statute was not narrowly tailored to its purpose nor the least restrictive means to achieve it, COPA failed strict scrutiny. Additionally, the court determined that COPA was void for vagueness and for overbreadth. COPA was passed in response to Reno v. ACLU, 521 U.S. 844 (1997), which held that the anti-obscenity provisions of the Communications Decency Act violated the First Amendment. COPA has been before the Supreme Court twice now. In prior cases, courts passed on the question whether to grant a temporary injunction against enforcing the law. Now, the district court has conducted its fact-finding and made its injunction permanent. In this case, the Court of Appeals affirmed the district court’s judgments.

Tiffany (NJ) and Tiffany and Company (Tiffany) sued eBay in Federal District Court for trademark infringement, trademark dilution, false advertising, contributory trademark infringement, and contributory trademark dilution. EBay challenged the counts of contributory infringement and dilution on two grounds. First eBay claimed it did not offer a product, and therefore could not be liable. Second eBay asserted that it did not support any known infringers. EBay claimed fair use for all the counts of trademark infringement. The court found contributory infringement applied to eBay because it controlled its site. However, it agreed that eBay did not support any known infringers. The court rejected the claims of infringement and dilution because eBay’s use was fair.

Hydra Media Group, an email advertising service provider, was sued for violating the Ohio Consumer Sales Practices Act (CSPA) and the Electronic Mail Advertising Act (EMAA) by a plaintiff who received numerous unsolicited advertisement e-mails. Hydra’s motion for summary judgment was based on the following grounds: (1) it is exempt from Plaintiff’s CSPA claim under Ohio Statute (2) since Hydra never directly sent any emails to him, plaintiff’s EMAA claims fail, (3) EMAA is preempted by the CAN-SPAM Act. The court granted defendant Hydra’s motion for summary judgment on the grounds that Hydra qualified for the exemption and the Plaintiff’s EMAA claims over CAN-SPAM Act is insufficient, but declined to grant summary judgment on the claim that there was an issue of fact as to whether Hydra "caused" the transmission of the email since Hydra could have reasonably foreseen the transmission.

Sam's Wines & Liquors, Inc. sued Sean Hartig, a former employee, and Plinio Group, LLC, Hartig’s new employer, claiming that Hartig stole Sam’s Wines’ confidential customer list from its computers prior to Hartig’s resignation. The list was password-protected and Hartig had signed an acknowledgement declaring that the information would not be disclosed. Hartig took the confidential customer list to Plinio and used it to solicit customers.
The court decided that the misappropriation of trade secrets through the use of a computer does not give rise to a claim based on CFAA, if "damages" was not pleaded in the complaint. Damages under the CFAA is defined as "…any impairment to the integrity or availability of data, a program, a system, or information."