Monthly Archives: June 2013

Aaron’s Law: Updating The Computer Fraud And Abuse Act For The 21st Century

Aaron’s Law
Aaron Swartz

2017 Update: According to Govtrack.com, Aaron’s Law “was introduced on June 20, 2013, in a previous session of Congress, but was not enacted.”

***Original Article***

Rep. Zoe Lofgren (D-CA) introduced Aaron’s Law in the House. A much anticipated bill, the proposal aims to eliminate vagueness in the Computer Fraud and Abuse Act.

Named after Aaron Swartz – the computer genius who took his own life when faced with 35 years in prison for downloading academic articles – the law would make it impossible for federal authorities to convict someone for minor terms violations.

How Aaron’s Law Came About

Soon after Swartz’s tragic death, Lofgren announced Aaron’s Law on Reddit – the popular news aggregator Aaron helped develop at 14.

In 2013, Lofgren introduced it to the House. Co-authored by Sen. Ron Wyden (D-OR) – who is expected to introduce a similar bill in the Senate – the bill seeks to eliminate“the core flaw of the CFAA,” which is vagueness.

Aaron’s Law seeks to eliminate“the core flaw of the CFAA,” which is vagueness.

Aaron Swartz’s Tragic Story

In 2011, federal authorities indicted Swartz for downloading massive amounts of data from MIT’s JSTOR academic database.

A highly contested case, the government sued Aaron even though the university didn’t press charges. Basically, the feds wanted to make an example out of Swartz – even though his actions didn’t cause any danger to national security, the school, or citizens.

To make matters worse, government attorneys piled on the charges, and if convicted – which looked to be inevitable – Aaron faced 35 years behind bars. Again, 35 years for the crime of being an extremely bright, overzealous student.

If ratified, Aaron’s Law will not compromise national security. But it will protect citizens from lifelong prison sentences for non-criminal ToS infringements.

Customer Review Lawsuit: Ripoff Report Case Study

Picture of laptop on table in modern office to accompany blog post about customer review lawsuitsAnother customer review lawsuit is making its way through the courts. Let’s talk about the case and review the basic requirements for winning an online trade libel case.

A Florida woman bought a hot tub, claimed it didn’t work, and posted a scathing review about it on Ripoff Report. In response, the hot tub company slapped the her with a defamation lawsuit.

Below, we’ll review the customer review lawsuit, and then discuss what differentiates an acceptable-but-negative online review from a defamatory one.

Ripoff Report Case Study: Customer v. Hot Tub Company

This Ripoff Report story is similar to most: A disgruntled customer posted a bad online review after an unfortunate incident, and the targeted company fired back with a libel claim.

In this case, a woman (whom we’ll call “Jenny”), bought a hot tub. “The spa leaked the first time I used it,” she explained, “so [the hot tub company] had it repaired. But then it leaked again. My carpet stank from the water and I wanted a refund.”

The situation grew even more contentious when the spa company reminded Jenny of the “no return” policy, which limited her options to paying a 10% restocking fee or $800 for a new tub.

Eventually, Jenny’s credit card company reversed the charges. Regardless, she posted her version of hot-tub-gate on Ripoff Report, which butchered the spa company’s bottom line.

Winning A Customer Review Lawsuit: Required Proof

Winning online review defamation cases isn’t easy. After all, free speech is a national solemnity. As such, slander and libel plaintiffs must present undeniable proof of the following:

  1. Falsity: Small mistakes don’t cut it. To win a defamation lawsuit, the problematic statement must be a demonstratively false statement of fact — and the plaintiff must prove its *untruthiness*.
  2. Harm: In most cases, businesses that file customer review lawsuits must demonstrate that the lie had a direct, financial impact on their bottom lines.
  3. Negligence: Proving harm and falsity still isn’t enough to win a trade libel lawsuit. Plaintiffs must also convince a judge or jury that the plaintiff a) didn’t engage in enough fact checking before publishing or b) knew the statement was false but posted it anyway.

Before moving forward with an online review claim, think about the situation. Can you prove all of the above? Or, did your adversary simply write a negative opinion? If it’s the latter, you may want to consider marketing options to restore your reputation instead of legal options.

Could win a customer review lawsuit?  Contact Kelly Warner Law.

Jesse Ventura and Leslie Davis: Round 4,815,162,342

picture of law books on shelf to accompany blog post about Jesse Ventura defamation caseSome defamation lawsuits are laugh-inducing; others fall into the “on-a-very-special-episode” category. And then there are the libel lawsuits that make you cringe. Entertainment wrestler, turned Minnesota Governor, turned conspiracy theorist Jesse Ventura’s lawsuit against Chris Kyle — a highly decorated Air, Sea and Land special ops (SEAL) solider — probably falls into the latter.

Jesse Ventura Sued Chris Kyle

The story begins in 2006. In his autobiography, Kyle recalled a night when both he and Ventura were at a California bar. According to Kyle, Ventura impugned the Navy SEALs that evening. And bBeing a proud SEAL, Kyle balked at Ventura’s bluster and allegedly cold-clocked the former Governor.

Ventura adamantly denied the event and sued for defamation.

Then tragedy struck. A solider suffering from PTSD shot and killed Kyle.

But instead of dropping the suit, Ventura filed a motion to have Kyle’s wife added to the claim. Litigation continued.

Enter the Environmentalist

Enter Leslie Davis – a notorious environmentalist who hates Ventura the way Yankee fans hate the Boston Red Socks. The reason behind Davis’ deep disdain?  It’s all outlined in his book “Always Cheat: The Philosophy of Jesse Ventura”.

Now, it’s important to note that Davis has been a thorn in Ventura’s side for awhile, to the point where Ventura even secured a restraining order against Davis in 2003.

But hey, a little court order didn’t keep the Ventura detractor down.

When Davis heard about Ventura suing Kyle’s wife, he requested to intervene. This is where things get interesting, from a defamation law standpoint.

Could Davis’ Intervention in the Ventura v. Kyle Defamation Lawsuit Help Mrs. Kyle?

Under United States law, third parties can request to intervene in lawsuits if they prove a vested interest in the outcome. In this instance, Davis believes Ventura lied in a November deposition related to the defamation suit and wants the transcript made public.

Why?

Davis thinks that fallacies may be lurking in Ventura’s deposition, which will affect Davis’ own legal issues with Ventura. He’s also claiming that Ventura “lied” his way into office, which resulted in “great harm to the environment,” hence, this current lawsuit and deposition is a matter of public concern. (#goodluckwiththat)

Davis is representing himself, so we’ll have to wait and see how he frames his argument.

In the meantime, it’s safe to say that if the court grants Davis the intervention, information could become public that might help Kyle’s widow. After all, what if Ventura did lie in the deposition? And considering that Davis has kept a very close watch on Jesse Ventura for years, who knows, maybe he would be able to prove the former governor wasn’t truthful about something. Theoretically, any proof of dishonesty on Ventura’s part could severely hurt his chances of winning – and help Kyle put this additional nightmare behind her.

Psychic Won A Defamation Lawsuit: Sally Morgan v. Daily Mail

A psychic won a defamation lawsuit because a newspaper intimated she was a fraud.
A psychic won a a wad of money because a newspaper intimated she was a fraud.

A psychic won a defamation lawsuit! Her name is Sally Morgan and she successfully sued the Daily Mail for implying her shows were staged.

Sally Morgan’s Psychic Defamation Case

Remember that Steve Martin movie, Leap of Faith, where he plays a healer? In the flick, he has a team of “spotters” who gather information about the hopeful masses at his revival gatherings. When the spectacle starts, the helpers feed Martin all the gathered information via a barely visible ear piece.

Well, the above scenario is pretty close to how audience members described clairvoyant Sally Morgan’s Dublin show — and they shared the story on a radio program.

Having caught wind of the potential fake out in Dublin, Paul Zenon, a magician, included the pair’s anecdote in an article he penned for the Daily Mail article about psychics. According to Morgan’s lawsuit, Zenon committed the ultimate civil wrong by labeling psychics as “charlatans” and accusing her of using “a hidden earpiece during her performance in order to receive instructions from her team which she then repeated on stage as if she had received them from the spirit world.”

Needless to say, Morgan was not impressed with Zenon’s piece. Retractions were demanded and not given. Presumably frustrated, Morgan finally filed a defamation claim.

A Psychic Won A Defamation Lawsuit! (But How?)

Either Morgan’s attorney a) is a great lawyer, b) knows how to use “The Force,” or c) both. Because after what must have been some convincing litigating, abracadabra, Associated Newspapers agreed to pay ole’ Sally “substantial damages” for insinuating her psychic revivals were a scam. The Daily Mail even printed an apology.

“The Daily Mail withdraws the suggestion that Mrs. Morgan used a secret earpiece at her Dublin show in September 2011 to receive messages from off-stage, thereby cheating her audience, which it accepts is untrue.”

Point ghost whisperers? (Regardless, we’re pretty sure there is at least one person considering using this case to support their own psychic defamation legal woes, Presley (a.k.a. Angel) – the Texas grannie whose visions resulted in an awkward moment between a swat team and her neighbor’s.)

If you need a defamation lawyer, contact Kelly Warner Law. We may not be psychic, but we know a whole lot about defamation law.

Online Gambling Law: Internet Gambling Regulation, Enforcement, & Consumer Protection Act

online gambling law
Are we on the brink of a new era of legal online gambling?

2017 Update: This online gambling law bill is still sitting in committee. No movement.

***Original Article***

The Internet Gambling Regulation, Enforcement, and Consumer Protection Act may be a game changer.

A Minuscule History of Online Gambling Law in the United States

Gambling and money were born on the same day.

By 1995, digital casinos had come into existence. And for many unregulated years, millions of people gambled online, uninterrupted.

The money flowed. People made fortunes. By 1997, annual profits soared to $1 billion; by 2007, $10.9 billion.

In 2006, politicians passed the Unlawful Internet Gambling Enforcement Act, which outlawed sending bets over the Internet.

The Country’s Current Online Gambling Law: Can’t Make Wagers Over The Internet

As noted above, the Unlawful Internet Gambling Enforcement Act of 2006 made it illegal for companies to collect bets or wagers through the Internet.

However, the Act does allow states to implement jurisdictional online gambling operations. Yes, some regions allow online gambling. But other states, like Washington, classify it as a felony.

States have banned sports betting, in particular. Why? To avoid conflicts with the Professional and Amateur Sports Protection Act.

Reasons For Federal Online Gambling Ban

  • Most online gambling companies currently operating are foreign, unknown entities. Legislators worry that Americans are sending money and personal information to shady parties, which could have national security implications.
  • Reliable online age verification is still a hurdle.
  • Addiction professionals lobby against it.

Gaming Bill Proposal

Legislators introduced a new gaming law that could open up the field. The Internet Gambling Regulation, Enforcement, and Consumer Protection Act of 2013 would:

  • Legalize Internet gaming, but with regulations. Casino games including roulette and poker would be allowed under the Act.
  • States can opt out, under the proposed law. But failing to respond within 120 days is considered an automatic opt-in.
  • Licensing requirements would offer protection against identity theft and other harmful consequences.
  • Players caught cheating would face possible fines and imprisonment.
Works Cited

Pilot Defamation Case: It’s Going To SCOTUS

TSA logo to accompany post about pilot defamation
SCOTUS to review a defamation-related TSA case.

The United States Supreme Court will soon ponder a pilot defamation case involving potential threat accusations.

The US Supreme Court will review a $1.24 million defamation judgment against a Wisconsin-based airline — Air Wisconsin — that reported one of its pilots as mentally unstable.

The Supreme Court will hear the air carrier’s appeal in its ongoing lawsuit against pilot William Hoeper.   The Court stated it would limit the review to whether or not the “ATSA immunity may be denied without a determination that the air carrier’s disclosure was materially false.”

Pilot Defamation Backstory

Hoeper’s problems started when Air Wisconsin decided to update its fleet. Unfortunately, he failed three tests on the new plane.  After his fourth, unsuccessful test, Hoeper flew home.  His manager, Patrick Doyle, testified that Hoeper became angry and scuffled with some employees while waiting for his flight.

Apparently, Doyle thought Hoeper would be an unruly passenger, contacted Air Wisconsin, and identified Hoeper as a potential threat to the Transportation Security Administration. The airline rep described Hoeper as “a disgruntled employee” with potential “mental stability” issues. Doyle also revealed the “whereabouts of Hoeper’s firearm.” As a result, traffic controllers ordered the plane to return to the gate.

(Hold up. Firearm, you ask!? As a federal flight deck officer, deputized by the Transportation Safety Administration while working for Air Wisconsin Airlines, William Hoeper carried a firearm.)

After the scuttle, the TSA removed Mr. Hoeper from the plane, searched and questioned him, but never charged him.

“You Call The TSA on Me, I File A Defamation Lawsuit Against You!”

Unimpressed with the airline’s handling of the situation, Hoeper filed a defamation lawsuit. A jury sided with the pilot. They decided Mr. Doyle’s statements amounted to defamation because Doyle made statements, “knowing that they were false, or so recklessly as to amount to a willful disregard for the truth.”

Air Wisconsin argued the merits of the case. The airline evoked provisions in the Aviation Transportation Security Act, which allows folks to report potential security threats without fear of retribution.

The Colorado Supreme Court ruled in favor of the plaintiff and upheld the original verdict.  The Court affirmed that Air Wisconsin did not deserve immunity under the Air Transportation Safety Act.

“Doyle could not form an opinion as to whether Hoeper was mentally unstable at the time that Doyle contacted TSA,” explained Justice Nancy Rice in her opinion.  “In fact, Doyle admitted at trial that, based on the information he had when he contacted TSA, he could not determine if Hoeper was mentally unstable. He, therefore, made this statement with a high degree of awareness of its probable falsity,” she concluded.

The fate of this pilot defamation case now lies in the hands of the Justices of the US Supreme Court.

History of Intellectual Property Law In 60 Seconds

history of intellectual property law

A Brief History of Intellectual Property Law

Since australopithecus africanus plodded across the Sahara, humanoids have developed ways to protect themselves and their flocks. But the protection of intellectual property — indeed, the very concept of such a thing — is a recent idea.

Copyrights didn’t exist in the days of Shakespeare, whose plays came to us via pirated quartos published without permission.

But after Gutenberg’s press hit the scene, lawmakers passed statutes granting exclusive rights to print books. The protection, however, only applied to printers, not authors.

History of Intellectual Property Law: Statute of Anne

It wasn’t until 1710, under the Statute of Anne, that officials first prohibited certain uses of another person’s intellectual property. Over the next three centuries, copyright laws spread like wildfire around the globe.

In the 1900s, International copyright treaties went into force.

Today’s Confusing Digital Copyright Laws

Early intellectual property laws have become a source of courtly confusion. New issues have arisen thanks to the Web, smartphones, and portable computer devices.

For instance, many people assume that photographs posted online are automatically in the public domain and can be used by anyone for any purpose. Not true. Online photos may be covered by copyright law no matter where they’re posted. For that reason, double-check the rights for any images you want to use. It’s also a good idea to keep a file of license owners in the event issues arise.

Contact A Digital Copyright Lawyer

As a general rule, unless you create a graphic or image, assume its copyrighted and properly credit the source.

That said, U.S. courts have ruled that using low-quality thumbnail images doesn’t constitute digital copyright infringement. Moreover, fair use standards exist.

Hope you enjoyed this brief history of copyright law. For more of our legal blog, go here.  If you need to speak with a digital copyright lawyer, contact Kelly Warner today.

NYP Defamation Suit: “Bag Men” Blast Newspaper With Libel Claim

New York Post logo to represent NYP bag men defamation lawsuit
The “Bag Men” may win a whole lot of money from the New York Post if the pair win their defamation lawsuit against the paper.

Two men, whom the New York Post labeled “Bag Men”after the fatal Boston Marathon bomb attack, sued the newspaper for libel.

The New York Post reported that Federal investigators sought 16-year-old Salaheddin Barhoum and 24-year-old Yassine Zaimi. The story had ran just hours before the FBI released photos of the actual suspects.

After the New York Post’s images had hit the Web, Barhoum and Zaimi went to the local police. Law enforcement officials assured both they were not suspects in the case.

“Bag Men” Were Spectators At The Marathon

Barhoum and Zaimi went to the Boston Marathon as spectators.  They left shortly after the winners crossed the finish line — about two hours before a pair of homemade pressure-cooker bombs exploded, killing three people and injuring more than 260.  Like the rest of the world, Barhoum and Zaimi learned of the bombings on television.

Post Frames Men As Suspects

The New York Post delivered a different impression. On Thursday, April 18, the newspaper ran with the “Bag Men” tagline on the front page.   The article stated that investigators “are circulating photos of two men spotted chatting near the finish line,” combined with a photo of Barhoum and Zaimi.

The civil lawsuit, filed in Massachusetts, seeks unspecified damages and names the New York Post, plus five journalists, as defendants.  Barhoum and Zaimi accuse the newspaper of publishing “photographic images, together with false, inflammatory and libelous assertions concerning plaintiffs’ involvement in the April 15, 2013 Boston Marathon bombing.”

Never Suspects

The Post’s “Bag Men” were never suspects. In fact, hours after publishing the photos, the FBI released pictures of two official suspects, later identified as brothers Tamerlan Tsarnaev and Dzhokhar Tsarnaev.

The two brothers allegedly killed a police officer at MIT and engaged in a gunbattle with police in Watertown. Tamerlan, 26, died in the fight. Dzhokhar, 19, was arrested after a day-long manhunt that paralyzed much of Boston.

Dzhokhar Tsarnaev is now in a prison hospital awaiting a death penalty trial. And the New York Post will probably pay big bucks for potentially crossing the defamation/false light line.

The “Internet of Things” and Privacy

the Internet of things and digital privacy
The Internet of Things Is Causing Digital Privacy Concerns.

 

The “Internet Of Things”

What Exactly Is the “Internet of Things”? It involves a lot of things — especially when it comes to digital privacy. The Federal Trade Commission uses the term to refer to the web of available devices, such as smartphones and tablets, but also other Internet-enabled devices, like vehicles and household appliances, that interact with each other via the Internet.

We can access online videos from smart televisions. Cars display traffic and weather information. Internet-enabled refrigerators can detect if a milk carton is almost empty and notify the grocery store.

And guess what: All of this connectivity has digital privacy and security implications.

Digital Privacy Implications

Consumer groups are starting to voices concerns about corporate access to user data, thanks to the Internet of Things. As such, the FTC will examine the issue.

But not everyone wants digital privacy regulations, believing that excessive regulations thwart innovation.

Game Developer Lawsuit: Battle Of The Gaming Tanks

game developer lawsuits
A new game developer lawsuit raises a few questions regarding online intellectual property.

Are you ready for some football tank wars!? A game developer v. game developer lawsuit, the case we’re about o dissect involves both online intellectual property and slander…kinda.

Origins of A Game Developer Lawsuit

World of Tanks is a game developed by Wargaming.net. Project Tank (a.k.a., Tanks Ground War) is a game developed by China-based Gamebox.

Apparently, Wargaming isn’t happy about Gamebox’s tank game, so it’s suing for intellectual property infringement.

Tank Game Developer Lawsuit Specifics

In the claim, Wargaming insists Project Tank is “disturbingly similar” to World of Tanks. The U.S.game developer avers Gamebox “copied the plot, theme, dialogue, mood, setting, pace, and character of World of Tanks, in addition to copying specific features, items, tanks, and artwork.”

Because of the suit, Facebook pulled Project Tank from its platform, which killed Gamebox’s bottom line.

Defendant’s Reaction & Counter Suit

A representative from Gamebox explained the company’s position:

“We feel truly shocked and bullied by Wargaming, a giant company of the gaming industry who is apparently ‘threatened’ by a closed beta phase browser game aiming to provide a cheaper, fairer, and more accessible war game to players around the world.”

Unwilling to go quietly into that digital night, Gamebox filed a counter-claim. The Chinese developer is alleging “illicit competition and slander.”

Who Will Win This Game Developer Lawsuit?

If argued well, the competition charge has merit: Similarities stem from similar themes, not theft. As such, a tank is a tank is a tank – and the ways one can depict a tank are finite.

Another factor bolstering Gamebox’s case: Project Tank’s expulsion from Facebook. To win intellectual property lawsuits, plaintiffs must prove material harm. In this case, Project Tank can probably present a strong case about the fiscal ramifications of Facebook suspension.

Need a game developer lawyer? Contact Kelly Warner Law. We have a strong, well-respected technology law team that deals with developer lawsuits and litigation. Get in touch anytime.