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Virginia computer forensics blog

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.

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.

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.

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.

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.

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.

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

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

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

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

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

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

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

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

Microsoft Corporation Sues a Dentist for Trademark Infringement and Cybersquatting

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

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

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

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