September 2010 Quick Links, Part 2

By Eric Goldman


* Hutchison v. Yahoo, 2010 WL 3706571 (9th Cir. Sept 20, 2010). AT&T’s early termination fee wasn’t a penalty, even as applied to a termination with only 2 weeks of service left.

* Evan Brown: Software contractor not bound by EULA it clicked on behalf of client.

* Zev J. Eigen, When and Why Do Individuals Obey Form-Adhesive Contracts?: Experimental Evidence of Consent, Compliance, Promise and Performance: “Individuals are more likely to comply with contract terms obligating them to perform an undesirable task when they see and choose to include the terms in the contract during the consent phase. The research also shows that demands for enforcement framed in moral terms–as a promise made that must be lived up to—similarly yield a greater likelihood of compliance than threats of legal action, instrumental appeals or pressure to conform socially.”

* Ewert v. eBay, 2010 WL 3893681 (N.D. Cal. Sept. 30, 2010). Class of sellers certified against eBay over alleged misrepresentations over the duration of auctions.

47 USC 230

* Voicenet Communications, Inc. v. Corbett, 2010 WL 3657840 (E.D. Pa. Sept. 13, 2010). Police raided a Usenet service provider looking for child porn and seized almost everything they could find. The service provider unsuccessfully sued for 1st and 4th amendment violations. In this ruling, the court also refuses to grant injunctive or declaratory relief to the service provider based on the service provider’s 47 USC 230 immunity. My prior post on this case.

* Black v. Google Inc., 2010 WL 3746474 (N.D. Cal. Sept. 20, 2010): “Plaintiffs appear to argue that Congress did not intend to grant immunity under § 230 in circumstances involving anonymity….However, there is no provision in the CDA that imposes such a limit.” Prior blog post.

Content Regulation

* The jury ruled for the defense in Moreno v Hanford Sentinel, an instant-classic cyberlaw case. My prior blog post.

* Defamation lawsuits against the media are down sharply.

* Nebraska v. Drahota (Neb. Sup. Ct. Sept. 24, 2010). Anonymous harsh emails cannot be prosecuted as a breach of the peace when they did not amount to “fighting words.”

* California enacts an “e-personation” law against fake online identities. CA Sen. Joe Simitian’s commentary.

* Congress goes after crush animal videos again.

* Useful Berkman Center report on the legal regulation of sexting, although not surprisingly the report does not offer any good answers.

Technology and our Legal System

* U. S. v. Diehl-Armstrong, 2010 WL 3718941 (W.D. Pa. Sept. 20, 2010). No change in the trial’s venue due to either popular YouTube videos related to defendants (which do not indicate the geography of viewers) or a Wikipedia entry.

* In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 2010 WL 3720406 (S.D.N.Y. Sept. 7, 2010): “Search engines have indeed created significant new dangers for the judicial system. It is all too easy for a juror to find out more than he or she should by typing a few carefully chosen words into a search engine. Nevertheless, in this instance, the jury was not too polluted by the receipt of extra-judicial information such as to prevent it from rendering a fair verdict based on the evidence introduced at trial.”

* NY State Bar Association Opinion #843 (Sept. 10, 2010): “A lawyer representing a client in pending litigation may access the public pages of another party’s social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.”

* ABA Formal Opinion 10-457: Lawyer Websites: “Lawyers must not include misleading information on websites, must be mindful of the expectations created by the website, and must carefully manage inquiries invited through the website. Websites that invite inquiries may create a prospective client-lawyer relationship under Rule 1.18.”


* Posted to my personal blog: “Scribd Puts My Old Uploads Behind a Paywall and Goes Onto My Shitlist”. As Wired explains, Scribd’s meltdown continues.

* Slashdot on a competition for automated Wikipedia anti-vandalism efforts. Later this year, I’ll address how and why my Wikipedia doomsday predictions haven’t come to pass.

* AOL quietly settled its community leaders lawsuit for $15M. The money was distributed this summer, so I believe the lawsuit is over. Unfortunately, this case leaves unresolved important issues about employment law applied to crowdsourcing.

* Apple has clarified and liberalized its App Store policies. Always smart to keep developers on your side.

* Zamora Radio, LLC v. Last.FM, 2010 WL 3893985 (S.D. Fla. Sept. 30, 2010). Internet radio station may not be sufficiently interactive to support remote jurisdiction.

* Evan Brown on Reed Construction Data v. McGraw Hill Companies, a case where competitor A accessed competitor B’s proprietary database using stealth contractors.

* The Supreme Court denied certiorari in the Boring v. Google case.

* 25 Most Influential People in IP. I nominated several of the selected folks. However, I did notice one group was categorically not present—the list does not contain any bloggers…