Technologist - The FindLaw Legal Technology Blog

July 2009 Archives

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

A Web site ideally is "sticky."  This means that the site attracts consumers who visit frequently and spend significant time and hopefully money on the site.  

Even better, the site also caters to so many of a consumer's needs and interests in a given space that the consumer will not go elsewhere on the Internet.

Along comes, as an example.  According to its press release, MakeItPro has just launched "the world's only online, interactive all-sport destination, marketplace and resource center for athletes and fans of more than 175 sports worldwide."

It's not every day that the country's largest retail website site submits a candid apology to users for an action that is self-described as "stupid, thoughtless, and painfully out of line with [its] principles."  CEO of Amazon, Jeffrey Bezos, did just that when he apologized on the company's behalf for removing the George Orwell's classics, Animal Farm and 1984, from customers' Kindle accounts last week.

When Amazon realized it was selling unauthorized e-copies of the works to customers to download on their Kindle accounts, it acted swiftly and in line with provisions of its Digital Rights Management (DRM) agreement with customers, to remove the content from subscribing accounts, and refund customers for their purchase.  And while Amazon's actions may seem reasonable in a broad sense of correcting a mistake, the poetic irony of the situation certainly has not escaped the media and Amazon customers---and has sparked the re-ignition of public debate over digital rights.

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

We are bombarded with advertising proclaiming longer and longer battery life for our various gadgets and devices.  Indeed, who hasn't had images of the Energizer Bunny burned into his or her mind?

But seriously folks, battery life isn't a joking matter.  When your cell phone or laptop dies on you for lack of battery power, you certainly don't feel like laughing.
Preparing SEC filings can be a daunting task, such that entire courses are dedicated to demystifying the process.  But Intelligize, Inc.--the same document technology company that last month released a proprietary search tool to assist filers in conducting legal research in preparation for SEC regulatory filings--announced the launch of its latest product this week fittingly titled "Comment Check".

3 Questions in Determining Liability in #Twittergate

Does Twitter Have Legal Claims for the Hacking and Posting Confidential Company Documents?

In an interesting development for Twitter, French hacker "Hacker Croll" recently compromised confidential information of the Silicon Valley microblogging phenomenon's top executives.  The security breach didn't end there, in fact after the hacker used simple techniques to gain access to the execs' Google accounts, he then retrieved more than 300 private documents stored on Google Docs and emailed the same to various tech news outlets.  TechCrunch, one of the highly-trafficked sites that was emailed, has already started posting some of the documents online.

Tagged, You're **it, Says New York AG

Did you, like so many others, receive one of those emails informing you that a friend had posted a message or left photos for you at, only to receive an apology from that friend later for inadvertently sending out spam?

Yeah, me too.  It got old pretty quick, and I ended up wanting nothing to do with

If you're anything like me, then, you greeted the news that New York Attorney General, Andrew Cuomo, is suing the company for "deceptive e-mail marketing practices and invasion of privacy" with a sense of gleeful satisfaction.

The social networking site sent misleading emails to all of the contacts on a new sign-ups email account if the person signing up didn't opt out of that little feature, leading to massive spamming and some embarrassed follow-up emails from new Tagged members.

Tagged's co-founder and chief executive, Greg Tseng, posted an entry in response to Cuomo's announcement stating that when "our company tested a new registration process, we discovered that our 'invite your friends' language was confusing."  However, given Tseng's past involvement in other sites with similar spamming tactics, it's easy to doubt the sincerity of this statement. 

See Also:
Social Net Tagged Getting Sued By NY AG (Washington Post)

In Jersey, a Blog Doth Not a Journalist Make

Ok, this one hits a little close to home.

A state judge in New Jersey has ruled that a blogger cannot claim the protection of the New Jersey reporter shield law in a defamation suit brought by a software company.

Ok, let me back up and explain what's going on here.  Shellee Hale runs a blog, operates a couple websites that offer her services as a "life coach", and has a private investigator's license.  She was investigating criminal behavior in the porn industry when she discovered that many porn sites used a piece of software to keep track of money they earn through referrals from other sites. 

Digital Music Survives to Stream Another Day

Some momentous events occurred yesterday in the world of digital music that may help to keep your favorite internet and satellite stations pumping out the tunes. 

First, the DC Circuit decided a case between SoundExchange, the organization that collects and distributes royalties to copyright owners, and Sirius XM Radio, who intervened in the case, over the royalty rate that satellite radio must pay to play music for the years 2007-2012.

Owners of copyrights in sound recordings have an exclusive right to "perform the copyrighted word publicly by means of a digital audio transmission," 17 USC § (106)(6).  Thus, in order to broadcast satellite radio, the broadcasters must pay a royalty to the copyright owner.  If they can't agree on a royalty, then the Copyright Royalty Judges step in and set one for them.
FindLaw columnist Eric Sinrod writes regularly in this section about legal developments surrounding technology and the internet.

More and more, information is saved on hard drives rather than hard copies.  Thus, it is not surprising that now the heart of discovery efforts in civil litigation more often focuses on the discovery of electronically stored information.  

In 2006, the Federal Rules of Civil Procedure were amended in an attempt to address and grapple with issues that arise in the e-discovery context in federal cases.  And now state legislatures are getting into the act to deal with such issues in state court cases. 
Wired's Threat Level blog is reporting that the Recording Industry Association of America has filed a motion to compel Charles Nesson to cease recording and posting depositions and other discovery materials to his blog or to the website for the Berkman Center for Internet & Society.  The motion also requests monetary sanctions for Nesson.

The motion comes after Nesson recorded multiple depositions and at least one phone conversation between the judge in the case and RIAA lawyers.  The RIAA lawyers argue that Nesson posted the recordings to the internet, even after the judge instructed him not to.  The judge has already admonished Nesson that taping conversations in Massachusetts is illegal without the consent of all the parties to the conversation. 

Two Developments in the Law of MySpace

Two important things happened around MySpace in the past few days.  First, a California appellate court ruled in favor of the company in a consolidated negligence action based on allegations that the company didn't do enough to protect underage users.

Second, a federal district court judge in Los Angeles threw out Lori Drew's conviction for accessing computers without authorization.  That case arose out of the notorious events surrounding Megan Meier's tragic suicide.  Prosecutors allege that Drew, the mother of one of Megan's peers, used the social networking site to create a fictional teen boy to humiliate Megan. 

The appellate ruling relied on Section 230 to find that the plaintiff's claims were based on communications between users.  As such, they were prohibited by Section 230's immunity for interactive service providers.

The federal district court judge in the Drew case held that if Drew "is to be found guilty of illegally accessing computers, anyone who has ever violated the social networking site's terms of service would be guilty of a misdemeanor. That would be unconstitutional, he said."  The judge made his ruling tentative until he issues the written order.  The prosecutors announced their plans to appeal the decision to the 9th Circuit.

All in all, quite a week for MySpace jurisprudence.
Let this be a lesson to future defendants in copyright infringement actions: if you plan on using a DMCA safe harbor defense, don't destroy or conceal evidence related to your argument.  Judges don't like that sort of thing.

That point was emphatically made yesterday by Judge Harold Baer of the Southern District of New York.  The judge was ruling in the case of Arista Records v.  Arista accused Usenet of basically every form of copyright infringement there is: direct, contributory, vicarious, you name it.