Los Angeles Business Litigation Blog : Los Angeles Business Litigation Lawyer & Attorney : Daniel Reisman Law Firm : California Civil Litigation & Contracts

• Mozilla officially released Firefox 3.5 today. One of its touted new features is Private Browsing mode (also known as "porn mode").

While private browsing may be useful for protecting sensitive information from some prying eyes, it's important to note that private browsing only means that Firefox won't save browsing history and cookies on one's local machine. In other words, you can now search for that perfect anniversary gift for your spouse online without the fear that he or she will be able to figure out what you were doing just by launching Firefox. However, your activity is still just as easy to track from another computer. (So, if any member of your household knows how to use a packet-sniffer, she'll still be able to see just how much porn you're watching how many gifts you're thinking about purchasing.)

• Turning piracy into profit for content owners:

Piracy watchdog Nexicon has found the ultimate way to turn piracy into profit for the fresh copyright holders added to their clientele. They offer alleged file-sharers the chance to settle for $10 per downloaded song or an equal amount for a pirated movie. If you decide not to settle, they promise to bankrupt you in court.

(via TorrentFreak).

There's nothing wrong with content owners tracking the digital distribution of their work. And, there isn't necessarily anything morally, ethically, or legally wrong with pursuing infringers. However, Nexicon and its affiliates such as the Video Protection Alliance ("VPA") (which happens to deal exclusively with adult content) have crossed the line.

The article at TorrentFreak points the reader's attention to the FAQ on the VPA's website. While all of the questions and answers are obviously aimed to scare the recipient of a settlement letter into using the credit card processing system conveniently provided by the VPA to quickly settle the matter, there are two that are particular causes for concern. They are as follows:

• How do I obtain a Liability Release & Settlement Receipt? Your Liability Release & Settlement Receipt will be automatically provided on screen and via email at the end of the settlement payment process.

• Do I need a lawyer? As with any legal proceeding, the guidance and representation of a lawyer can be very important. It is likely that the cost incurred to retain a lawyer will exceed the settlement amount offered. The decision to hire a lawyer is entirely up to you.

Regarding the first question, the problem is that it doesn't provide any detail as to what a "Liability Release & Settlement Receipt" actually is. As far I as I know, there is no standard legal definition of a "Liability Release & Settlement Receipt." Nor would it be in the VPA's interest if there were a standard definition. While a "Liability Release & Settlement Receipt" could theoretically contain an actual settlement agreement and release from liability, there is nothing in the language used on the website to indicate that it actually does. Even if the receipt does contain language releasing the settlor from liability, it may be very narrowly drafted. And, of course, one doesn't actually get to see the "Liability Release & Settlement Receipt" until after payment is tendered.

Regarding the second question, it essentially advises the reader not to seek the independent advice of a lawyer, and simultaneously attempts to avoid advising the reader not to seek the independent advice of a lawyer. In my opinion, it is plainly unethical. In general, if a lawyer is going to advise an individual to take any sort of action that is in the lawyer's interest, but adverse to the individual's interest, the lawyer should encourage the individual to seek independent counsel. Although the VPA is neither a lawyer nor a law firm, to the extent that it offers legal advice, I see no reason as to why it shouldn't be bound by similar ethical standards. After all, the VPA's website isn't solely providing educational information, and it isn't just advertising--it's negotiating settlements.

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An article in the North Jersey Crime Examiner reports that an appellate court in New Jersey reversed the judgment in a collection case because the lower court mistakenly admitted a Wikipedia entry into evidence during a bench trial. The case is a good example of what not to do at trial.

The plaintiff collections agency allegedly acquired the defendant debtor's delinquent credit card account as part of a portfolio of delinquent accounts originating from Bank One Corporation. It sued the defendant alleging $30,000 in unpaid credit card debt. See Palisades Collection, L.L.C. v. Graubard, 2009 WL 1025176 (N.J.Super.A.D. Apr. 17, 2009).

At the beginning of the trial, the plaintiff, invoking the doctrine of judicial notice, offered a Wikipedia entry into evidence "to establish that Bank One Corporation was purchased by J.P. Morgan & Company in 2004," which the trial court accepted. At the conclusion of the trial, the court entered a judgment against the defendant for approximately $18,000.

On appeal, the defendant argued that the trial court should not have admitted the Wikipedia entry into evidence. Consequently, the plaintiff failed to meet its burden with regard to standing because it lacked sufficient evidence to prove ownership of the debt. The appellate court agreed.

The court reasons,

[t]he trial court's acceptance of Wikipedia was...contrary to the principle that judicial notice must be based upon "sources whose accuracy cannot be reasonably questioned."

The court further explains,

it is entirely possible for a party in litigation to alter a Wikipedia article, print the article, and thereafter offer it in court in support of any given position. Such a malleable source of information is inherently unreliable, and clearly not one "whose accuracy cannot be reasonably questioned."

As a final note, the court's reasoning here is also consistent with a case decided late last year in Texas. In Flores v. Texas, the court noted that Wikipedia's openness--its greatest strength--is also its greatest weakness. Again, since anyone can edit the material on Wikipedia, the court declined to rely on its accuracy. See Flores v. Texas, No. 14-06-00813-CR., 2008 WL 4683960 (Tex. App. Oct. 23, 2008).

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• "Undo Send"—Five More Seconds to Change Your Mind

Gmail Labs added a new feature a few weeks ago—Undo Send. If enabled, a user has about 5 seconds to "hit the panic button" before the message is sent.

On one hand, given the time limitation, the feature's uses are limited. On the other hand, five seconds may, for example, be just long enough to realize that one made the commonly embarrassing and potentially damaging mistake of selecting "Reply to All" instead of "Reply."

• Hitting the Panic Button Too Late—Moreno v. Hanford Sentinel, Inc.

Unfortunately, there generally isn't a simple way to undo the damage an ill-conceived email or blog post (or Tweet) can do—as is the case in Moreno v. Hanford Sentinel, Inc., No. F054138, 2009 WL 866795 (Cal. Ct. App. April 2, 2009). See also Mike Mckee, MySpace Musings Aren't Private, Appeals Court Rules, Law.com, April 6, 2009.

• Background: Moreno v. Hanford Sentinel, Inc.

In 2005, after returning from a visit with her family in her hometown of Coalinga, CA, Cynthia Moreno, an undergraduate at UC Berkeley, wrote "An Ode to Coalinga" and posted it on her MySpace page. Apparently, she didn't have anything positive to say. As the court describes it,

[t]he Ode opens with "the older I get, the more I realize how much I despise Coalinga" and then proceeds to make a number of extremely negative comments about Coalinga and its inhabitants. Moreno, No. F054138, 2009 WL 866795, at *1-2.

Six days after posting the Ode, Moreno decided to take it down, but it was too late. Cynthia's high school principal in Coalinga had already read the post and given a copy to his friend, the editor of a local newspaper. The editor then republished Ode in the paper, and, of course, attributed it to Cynthia Moreno. Id. at *2.

Moreno's family received hate mail and death threats. Her father was forced to close the 20 year-old family business, and, ultimately, the family was forced to move. Id.

The family sued the principal, the school district, the editor, and the newspaper for invasion of privacy and intentional infliction of emotional distress ("IIED"). The editor and the newspaper were dismissed as defendants after winning an anti-SLAPP motion and motion to strike. The principal and the school district demurred to both of the plaintiffs' theories of liability, and the trial court sustained the demurrer on both claims without leave to amend.

On appeal, the court upheld the trial court's dismissal of the invasion of privacy claim, holding that the author of an article published on MySpace.com cannot state a cause of action for invasion of privacy against those who republished the article in a local newspaper. However, the court still allowed the case to move forward on at least one theory of liability by reversing the ruling of the trial court with regard to the claim of IIED. See Id.

• Where nothing private is revealed, there is no invasion of privacy.

Eric Goldman, at his Technology & Marketing Blog, explains the court's decision as follows:

The privacy invasion claim was easily rejected. Once Moreno posted the essay to an open-to-the-public MySpace page (even if only briefly), it was no longer private. As the court says, "the fact that Cynthia expected a limited audience does not change the above analysis. By posting the article on myspace.com, Cynthia opened the article to the public at large. Her potential audience was vast." It also did not matter that Moreno did not use her last name on her MySpace page; the court says that her identity was readily ascertainable from her MySpace page (which included a photo)...

• So, does publication on the internet necessarily bar invasion of privacy actions?

In Moreno, the court doesn't entirely foreclose upon the possibility that one may still have a right to keep something private, even if published on the internet, but it certainly doesn't provide a clear test.

Using language borrowed from a case where alleged trade secrets were leaked online, the court states "[t]he publication was not so obscure or transient that it was not accessed by others." Id. at *3. This language raises at least two questions. First, does the work have to obscure and transient even if it isn't accessed by others? Second, can a work be accessed by others, and still be obscure and transient enough to retain its private status?

The trade secrets case that the court cites in Moreno doesn't provide much guidance because, with regard to leaked trade secrets,

[t]he concern is whether the information has retained its value to the creator in spite of the publication. Publication on the Internet does not necessarily destroy the secret if the publication is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people, i.e., potential competitors or other persons to whom the information would have some economic value. DVD Copy Control Ass'n Inc. v. Bunner 116 Cal. App. 4th 241, 251 (2004) (citations omitted).

Since there is no dispute over the economic value of Cynthia Moreno's Ode, most of the analysis above is inapplicable in her case. Also, the court in Moreno seems to have conspicuously omitted the language about becoming known to the relevant people.

What if Cynthia Moreno's high school principal was the only person who read the Ode? Would the Ode have then been "transient and obscure" enough to remain private?

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There has been considerable press coverage regarding the general outrage inspired by Facebook’s changes to its terms of service since the original alarmist post appeared in The Consumerist. So, it was only a matter of time until someone threatened to initiate formal legal proceedings. And, according to The New York Times, approximately twenty-five consumer interest groups intended to do just that by filing a complaint with the Federal Trade Commission alleging unfair and deceptive trade practices today. As a result, Facebook has, at least temporarily, withdrawn the new terms of service in exchange for an agreement with the consumer groups to delay bringing a claim against it.

Of course, Facebook still intends to change its terms of service. And, from a practical perspective, I think it should. Facebook’s now-defunct-revised terms of service were probably a more accurate reflection of how Facebook users’ and ex-users’ content is currently used and how it will continue to be used in the future. In essence, I think there is probably a strong argument in favor of modifying the terms of service to state that Facebook users do in fact relinquish a fair amount of their rights with regard to the content they post on the site—if only to bring the legal effect of the terms of service into sync with the practical effect of posting content on Facebook. It will reduce Facebook’s exposure to liability, and, hopefully, it will encourage users to be cautious when posting valuable content on Facebook. As to how Facebook can accomplish such a change given the recent debacle as well as the questionable legality of unilaterally changing the terms of service for current users, that remains to be seen and is beyond the scope of this post.

Protecting the rights of users with regard to the content they post on Facebook—under almost any reasonable terms of service—will be difficult, time-consuming, and expensive (if possible at all). For example, I doubt that most Facebook users register the copyrights to the photos that they post on the site; however, copyright registration is a prerequisite to copyright litigation—and registration is not cheap.

Despite the possibility that from a purely theoretical standpoint, the user may retain most or even all of the legal rights to the content after posting it on Facebook, from a practical standpoint, once it is posted on Facebook, it is likely to stay on Facebook in one way or another for a long time. Therefore, I think that advice given to the readers in The Consumerist that states “[m]ake sure you never upload anything you don’t feel comfortable giving away forever, because it’s Facebook’s now” is sound regardless of which set of terms of service are currently in effect.

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