Monthly Archives: August 2010

Court Orders That the Identities of Anonymous Internet Posters be Disclosed

Under certain circumstances, people who defame others anonymously on the Internet may lose their anonymity.   A recent example is a  case decided on July 12, 2010,  In re: Anonymous Online Speakers, Anonymous Online Speakers, v. United States District Court for the District of Nevada Reno, 611 F.3d 653, 10 Cal. Daily Op. Serv. 8774, 2010 Daily Journal D.A.R. 10,795 (Ninth Cir. 2010). That matter involved Quixtar, a “[m]ultilevel marketing business [that]  brought suit alleging that [a] competitor [TEAM] orchestrated [an] Internet smear campaign via anonymous postings and videos disparaging it and its business practices. As part of discovery process, the [lower Court] , ordered [the] competitor's online content manager to disclose identity of three of five online speakers who allegedly made the defamatory comments.” Id.


Examples of the alleged defamatory statements included the following:  “Quixtar has regularly, but secretly, acknowledged that its products are overpriced and not sellable”; “Quixtar refused to pay bonuses to IBOs in good standing”; Quixtar “terminated IBOs without due process”; “Quixtar currently suffers from systemic dishonesty”; and “Quixtar is aware of, approves, promotes, and facilitates the systematic noncompliance with the FTC's Amway rules.”  Id. at 656.


The Court acknowledged that First Amendment protections involving anonymous speech apply to the Internet, as well. “ First Amendment protection for anonymous speech was first articulated a half-century ago in the context of political speech, Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), but as the Supreme Court later observed, the Talley decision hearkened back to “a respected tradition of anonymity in the advocacy of political causes.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Undoubtedly the most famous pieces of anonymous American political advocacy are The Federalist Papers, penned by James Madison, Alexander Hamilton, and John Jay, but published under the pseudonym “Publius.” Id. at 344 n. 6, 115 S.Ct. 1511. Their opponents, the Anti-Federalists, also published anonymously, cloaking their real identities with pseudonyms such as “Brutus,” “Centinel,” and “The Federal Farmer.” Id... Although the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech-there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to online speech. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). As with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without “fear of economic or official retaliation … [or] concern about social ostracism.” McIntyre, 514 U.S. at 341-42, 115 S.Ct. 1511.” Id. at 656-7.


    The Court also acknowledged that just because this was commercial speech, not political speech, that did not mean it lacked First Amendment protection. “The Internet postings and video at issue in the petition and cross-petition are best described as types of ‘expression related solely to the economic interests of the speaker and its audience’ and are thus properly categorized as commercial speech. Central Hudson Gas & Elec. Corp., 447 U.S. at 561, 100 S.Ct. 2343. The claimed disparagement goes to the heart of Quixtar's commercial practices and its business operations. However, this characterization alone does not determine the First Amendment protections for the anonymous commercial speech central to this case. The Supreme Court has underscored that “an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of *658 speech protected by the First Amendment.” McIntyre, 514 U.S. at 342, 115 S.Ct. 1511.” Id. at 657.


 The Court concluded that “[t]he district court here appropriately considered the important value of anonymous speech balanced against a party's need for relevant discovery in a civil action. It also recognized the “great potential for irresponsible, malicious, and harmful communication” and that particularly in the age of the Internet, the “speed and power of internet technology makes it difficult for the truth to ‘catch up’ to the lie.” Id. at 661


Accordingly, the Court of Appeals held  that because the lower Court’s ruling was not clearly erroneous, they would not disturb it on appeal.

The DMCA Does Not Bar the Unlocking or Jailbreaking of Mobile Phones

On July 26, 2010, James H. Billington, the Librarian of Congress, issued a statement relating to the Digital Millennium Copyright Act (“Copyright Act”). Under the Copyright Act, the Librarian of Congress is required every three years to “determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work.” Id. at 1.
In his statement, he designated six (6) classes of works. “Persons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention.” They are as follows:
  1. Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances
    • Educational uses by college and university professors and by college and university film and media studies students
    • Documentary filmmaking
    • Noncommercial videos
  2. Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.
  3. Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network
  4. Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if
    • The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
    • The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.
  5. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.  A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and
  6. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.” 


© 2009 Nissenbaum Law Group, LLC

Waiver of Liability Clause is Overcome By a Search Engine Victimized by Gross Negligence

On July 27, 2010, a Federal Judge sitting in the Southern District of New York ruled that a search engine could sue for gross negligence against its Internet service provider, even though the search engine had signed a waiver of liability. In Baidu, Inc. v., 10 Civ 444 (SDNY 2010), the Court was presented with a case in which a company that operates one of the world’s largest search engines, Baidu, Inc., was shut down for a number of hours by hackers from the “Iranian Cyber Army.” Once the hackers penetrated the website’s security protocols, they posted an Iranian flag and a broken Star of David.

As reported in the New York Law Journal, Volume 224, No. 10 (2010), the parties admitted that the ISP agreement had clearly stated that Baidu, Inc. was proceeding at its own risk and would provide its own security. However, the hacker was able to penetrate by emailing that it had lost its password. It provided a new password, notwithstanding the fact that the hacker was unable to answer the security questions.

The Court held that the gross negligence by was either intentional wrongdoing or at the very least, “reckless disregard for the rights of others.” On that basis the Court allowed the case to proceed on the claims of gross negligence and breach of contract.


© 2009 Nissenbaum Law Group, LLC