Ignoring Warnings Against Network Access Leads to CFAA Violations

The Ninth Circuit has issued decisions regarding the Computer Fraud and Abuse Act (CFAA) twice so far this month. Crimes involving the use of computers date back to at least the early 1980s, but the existing mail and wire fraud crime statutes were not adequate to address criminal activity arising out of computer use.  Congress enacted the CFAA as part of the Comprehensive Crime Control Act of 1984 to address this gap in crime coverage.  The CFAA protects against the unauthorized access and use of computers and computer networks and creates both criminal and civil liability.  Network users: Heed the warning to “get off of my cloud.”

In determining the meaning of “accesses a protected computer without authorization” (18 U.S.C. §1030(a)(4)) in the criminal context, the Ninth Circuit said:

We conclude that ‘without authorization’ is an unambiguous, non-technical term that, given its plain and ordinary meaning, means accessing a protected computer without permission. This definition has a simple corollary: once authorization to access a computer has been affirmatively revoked, the user cannot sidestep the statute by going through the back door and accessing the computer through a third party. Unequivocal revocation of computer access closes both the front door and the back door.

(Opinion pdf pages 4 -5).

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Attorney’s Fees Awards Not Controlled by Losing Party’s Reasonableness Arguments

Before ending its 2015-2016 term, the U.S. Supreme Court issued an opinion in Kirtsaeng v. John Wiley & Sons, Inc.  – for a second time.  SCOTUS issued its first Kirtsaeng opinion in March 2013.  That time, the Court ruled that Kirtsaeng did not infringe Wiley’s copyrights by selling books in the U.S. that were published abroad by Wiley.  I posted on the Court’s decision in First Sale Doctrine Not Limited by Geography, Rules U.S. Supreme Court.

Whether the lower courts erred in denying Kirtsaeng’s motion for attorney’s fees brought Kirtsaeng before the Court the second time.  The Court determined that the lower courts may not have understood the full scope of their discretion to award attorney’s fees and remanded the case for further consideration of Kirtsaeng’s attorney’s fees motion.

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Supreme Court of Florida to Weigh in on Common Law Sound Recording Rights

I’ve written periodic posts about Flo & Eddie since December 2014.  As a brief refresher, the corporation Flo & Eddie owns the rights to the pre-February 15, 1972 sound recordings of The Turtles.  Band members Mark Volman and Howard Kaylan own Flo & Eddie.  Sirius XM Radio, Inc. operates nationwide as a satellite and Internet radio provider.  Flo & Eddie sued Sirius in federal courts in California, New York and Florida.  Flo & Eddie claimed that Sirius violated Flo & Eddie’s ownership rights in its pre-1972 sound recordings by broadcasting recordings and making buffer and backup copies of Turtles performances without a license or authorization.  Appeals in the Flo & Eddie v. Sirius cases are pending before the Second, Ninth, and Eleventh Circuits.

Flo & Eddie’s cases against Sirius arise from the lack of federal copyright protection for pre-1972 sound recordings.  Sound recordings did not receive protection under the Copyright Act until February 15, 1972, although musical compositions and lyrics have always been protected.  If pre-1972 sound recording rights are protected at all, it is under state copyright law.  Although the district courts in California and New York ruled in Flo & Eddie’s favor on its state law claims, the Southern District of Florida granted summary judgement in Sirius’ favor.  On appeal in the Florida case, the Eleventh Circuit Court of Appeals determined that the state law questions had not been decided by Florida state courts.  The Eleventh Circuit certified four questions to the Supreme Court of Florida for that court’s guidance on Florida state law.

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Common Law Tort of Intrusion Upon Seclusion Revitalized in Internet Age

In the past year, the federal law claims in two cases involving Google’s cookie collection practices have been dismissed.  Federal Wiretap Act, Stored Communications Act and Computer Fraud and Abuse Act claims against Google were dismissed in In re: Google Inc. Cookie Placement Consumer Privacy Litigation.  Federal Wiretap Act, Stored Communications Act and Video Privacy Protection Act claims were dismissed in In re: Nickelodeon Consumer Privacy Litigation.  Left standing in both cases were the state law intrusion upon seclusion claims.  Intrusion upon seclusion is one of the four privacy torts arising out of litigation during the years following the 1890 Warren and Brandeis article, The Right to PrivacyThe Right to Privacy brought public awareness to the need to protect individual privacy and provided a legal basis for doing so.  Public disclosure of private facts, false light and appropriation are the other three common law privacy torts. 

With all of the federal and state statutes that have been enacted specifically addressing computers and online activity, who would have thought that the analog age tort of intrusion upon seclusion would swoop in like a super hero to act as the vanguard for online consumer privacy rights?  

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