Intellectual Property Counseling: From Start-Up to Initial Public Offering

Anonymity Online Originally, the standards began very minimalist Motion to Dismiss Columbia Ins. Co. v. Seescandy.com 185 F.R.D. 573, 578 (N.D. Cal.1999) Elements quite straightforward…. © 2010 Mudd Law Offices

Anonymity Online • Identify defendant with sufficient particularity • Show previous efforts to locate the defendant • Demonstrate Could Survive Motion to Dismiss • Justify Request and Identify Those with Information © 2010 Mudd Law Offices

Anonymity Online Standards became more stringent Dendrite Int’l, Inc. v. John Doe No. 3 775 A.2d 756, 760-761 (N.J. App. 2001) • Notification • Specify Exact Statements • Prima Facie Cause of Action • Produce Sufficient Evidence to Support Each Element • Balance Strength of Prima Facie Case against Necessity for Disclosure © 2010 Mudd Law Offices

Privacy Video Surveillance Robbins v. Lower Merion School District (E.D. Pa.) (school uses laptop cameras) Arlen Spector introduced legislation Surreptitious Video Surveillance Act of 2010 © 2010 Mudd Law Offices

Social Media Concerns (cont’d) Why be concerned? Hostile environment/harassment issues Defamation Claims Improper Disclosure Child Pornography Reporting (Illinois) FTC Guidelines on Product Affiliation Malware and Security Issues © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) Variety Contexts - National Security - Financial Information - Information from Government - Protected Computer © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access (a)(4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access One of five types of damage (18 U.S.C. § 1030(c)(4)(A)(i) Most Common (I) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value; Also: affecting medical examination, diagnosis, treatment, or care physical injury to any person; a threat to public health or safety; damage affecting a computer used by or for an entity of US © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access Snap-on Business Solutions Inc. v. O'Neil & Assocs., Inc. (N.D. Ohio April 16, 2010) (Examined Agreements, question of fact denied MSJ) LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009) (access not automatically unauthorized if disloyal) International Airport Centers, LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006) (employee who violates duty of loyalty, no authorization) © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq. Particularly § 2511, criminalizes Intentional interception of oral, wire or electronic communication Discloses Uses © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access ECPA (cont’d) Civil Remedies generally any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access Relief • Preliminary, declaratory and other equitable • reasonable attorney’s fee and costs • Damages, either (a) actual plus profits OR (b) statutory ($100/day or $10,000) 18 U.S.C. § 2520 © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access ECPA (cont’d) Question: What is electronic communication? United States v. Councilman, 418 F.3d 67 (1st Cir. Mass. 2005) United States v. Szymuszkiewicz, 2009 U.S. Dist. LEXIS 60755 (E.D. Wis. June 30, 2009) © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access Stored Communications Act (18 U.S.C. § 2701) whoever-- • intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; AND….. © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access SCA (cont’d) thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished . . . © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access SCA (cont’d) City of Ontario, California v. Quon, et al. United States Supreme Court April 19, 2010 Oral Arguments Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. Cal. 2008) © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access SCA (cont’d) Quon SCA Question: In storing texts, was Arch Wireless acting as a “remote computing service” or an “electronic communication service”? If remote computing service, it could disclose, as subscriber was the City employer. © 2010 Mudd Law Offices

Eavesdropping and Unauthorized Access SCA (cont’d) Quon SCA Question: If electronic communication service, it could not disclose because the City was not an “originator or an addressee or intended recipient of such communication.” This is what Ninth Circuit concluded. © 2010 Mudd Law Offices

CDA § 230 OSP Safe Harbor for Content No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 47 U.S.C. § 230(c)(1) © 2010 Mudd Law Offices

Intellectual Property Counseling: From Start-Up to Initial Public Offering