2H 2018 Quick Links, Part 6 (IP, E-Commerce, Censorship, & More)

Intellectual Property

* Daniel v. FanDuel (Ind. Oct. 24, 2018): “online fantasy sports operators that condition entry to contests on payment and distribute cash prizes do not violate the Indiana right of publicity statute when those organizations use the names, pictures, and statistics of players without their consent because the use falls within the meaning of “material that has newsworthy value,” an exception under the statute.”

* Washington Post: ‘Everyone signed one’: Trump is aggressive in his use of nondisclosure agreements, even in government

* Massachusetts Finally Passes Non-Compete Bill After Nearly a Decade

* Stephen D. Levandoski, Note, To Seize the Initiative: Assessing Constitutional Due Process Challenges to the Defend Trade Secret Act’s Ex Parte Seizure Provision, 93 N.Y.U. L. Rev. 864 (2018):

In an effort to protect innovation and increase trade secret enforcement, Congress passed the Defend Trade Secrets Act in 2016. The law contains an ex parte seizure provision that provides for the seizure of property in order to prevent the theft or transmission of a trade secret. This Note is the first to argue that the ex parte seizure provision raises serious constitutional due process concerns. It proceeds by framing the seizure provision within its historical and legislative context, identifying infirmities in the provision through the lens of due process, and addressing larger practical and policy implications. The potentially widespread and lasting effects of the seizure provision on employee mobility, innovation, and competition underscore the importance of eliminating the provision or severely limiting its scope.

* Whose injera is it anyway? Apparently the Dutch have patented many aspects of teff, creating all kinds of problems for Ethiopia.


* Allstate New Jersey Insurance Co v. Amazon.com,  2018 WL 3546197 (D.N.J. July 24, 2018).

Plaintiff mainly argues 1) that under New Jersey law, someone within the distribution chain is a “product seller,” and Amazon, a party within the distribution chain, is thus a “product seller”; and 2) public policy supports holding Amazon liable as a “product seller.” Although it is a close question, Plaintiff’s arguments fail because it has not demonstrated that New Jersey courts would, in fact, extend the definition of “product seller” to a party involved in the distribution chain as Amazon was here. Public policy arguments likewise do not establish that a New Jersey strict liability law is meant to capture Amazon’s actions under the extant facts. Thus, for the reasons that follow, Amazon—in this instance—cannot be held liable as a “product seller” under the PLA …

Amazon may have technically been a part of the chain of distribution, but it never exercised control over the product sufficient to make it a “product seller” under the PLA.

* In 2012, I asked “Will the Floodgates Open Up for ADA Claims Against Websites?” I think we’ve gotten our answer: 800+ lawsuits filed in 2017

* Inside Higher Ed: Fifty colleges sued in barrage of ADA lawsuits over web accessibility

* Sarah Jeong on the rough-and-tumble competitive gaming of Kindle Unlimited

* The Verge: A deep look at the brutal world of competitive gaming among Amazon merchants

* Quartz: Secret Amazon brands are quietly taking over Amazon.com

* WSJ: Just Bought a New Puppy? It Might Be a Rental


* Leuthy v. LePage, 2018 WL 4134628 (D. Me. Aug. 29, 2018):

With regard to their First Amendment free speech rights, again based on the Plaintiffs’ allegations, the Facebook users who post messages expressing disagreement with the Governor via the “Paul LePage, Maine’s Governor” page are akin to citizens who might attend a public meeting hosted by him or who organize rallies at Blaine House in that they seek to engage the Governor on issues pertinent to his official duties and to express their viewpoints in a forum and context associated with him and those duties. The cases the Governor cites involving political rallies by incumbent elected officials are distinguishable. In those cases, the prospect of interruption and interference is real. A protester yelling and attempting to drown out the speaking elected official can easily interfere with and even halt the elected official’s speech. See Johanns, 544 U.S. at 574 (Souter, J., dissenting) (“To govern, government has to say something, and a First Amendment heckler’s veto of any forced contribution to raising  the government’s voice in the ‘marketplace of ideas’ would be out of the question.”). In contrast, a Facebook post, which is textual and visible alongside posts by the Governor, his supporters, and others, does not prohibit the Governor from posting whatever and whenever he wants. His words are conveyed and received with the precision and clarity he intends. Based on the allegations in the Complaint, which the Court must accept, the Plaintiffs stated sufficient facts to plausibly allege that the conduct in this case is the Governor’s deletion of posts and banning of citizens from the “Paul LePage, Maine’s Governor” page, and that this conduct does not constitute government speech…..

The Governor does not dispute the Plaintiffs’ claims that his deletion of their posts and banning of them from his page constituted viewpoint discrimination. Given this and the Court’s conclusion that forum analysis does apply, the Court finds that the Plaintiffs plausibly stated a claim for violation of their free speech rights under the First Amendment. …

Based on the allegations in the Plaintiffs’ Complaint, the Court sees the speech as the Plaintiffs’ posts that the Governor deleted, as well as the future speech that they wish to engage in, within the forum of the “Paul LePage, Maine’s Governor” Facebook page. Based on the allegations in the Complaint, the Court is unconvinced that the Governor adopts as his own speech each undeleted post made by someone else on the page. The Court also disagrees with the related notions that allowing a post to remain on a social media page amounts to “listening” or that the Plaintiffs are asserting “a right to be heard.” The Court understands the Plaintiffs to be asserting a right to speak; whether their speech is heard and/or whether the Governor is listening are separate questions. …

The Governor cites no authority for the view that alternative channels for petition render a claim for violation of the Petition Clause nonviable, and the Court found none. The Governor does not analogize the Plaintiffs’ communications via “Paul LePage, Maine’s Governor” to frivolous litigation or to petitions to the President that contain intentional or reckless falsehoods.

*  Garcia v. Good For Life by 81, Inc., 2018 BL 250095 (S.D.N.Y. July 12, 2018)

Provisions that prohibit a party from contacting the media can “prevent the spread of information about FLSA actions to other workers (both employees of Defendants and others) who can then use that information to vindicate their statutory rights.” Amaro v. Barbuto, LLC, 2017 WL 476730 (S.D.N.Y. Feb. 2, 2017) (removing a provision that prevented plaintiff from revealing to any “outlet, including newspapers, television stations, and radio stations, inter alia, the fact or existence of this Settlement Agreement, and . . . any aspect of any of the operations and activities of [defendants] as alleged by [plaintiff] in the Action” from the settlement agreement). These provisions impermissibly undermine the FLSA’s remedial purposes by restricting workers from using the media to “publicize both the wrongdoing of the employer and the possibility of success more generally.” Access to the media is particularly important because the plaintiffs in this case are low-wage employees, some of whom do not speak English well – precisely the people who require the protection of the FLSA. The media plays a key role in connecting individuals today – including low-wage, non-English speaking workers living far from their original homes – to matters of interest to them. Those communities may “have much to gain from the diffusion of information about their employment rights” through the media. Barring plaintiffs from contacting the media is thus not a trivial infringement on their ability to spread the word “to other workers” who may then be able to “vindicate their statutory rights.”

*  Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

* “China is building a digital dictatorship to exert control over its 1.4 billion citizens. For some, “social credit” will bring privileges — for others, punishment.”


* Betz v. Aidnest, 2018 WL 5307375 (D.D.C. Oct. 26, 2018): “the fact that Aidnest directly targets consumers in the District via its online presence (website, Facebook page, and Twitter account) is insufficient under (a)(4)(i) or (a)(4)(ii), because use of online or web-based resources by District of Columbia residents does not constitute “purposeful availment” by a defendant for the purpose of the minimum contacts test; rather, it is an “unavoidable side-effect of modern internet technology.””

* Minnesota v. Decker, 2018 WL 3748685 (Minn. Aug. 8, 2018). Conviction affirmed for texting a dick pic to a minor. Prior blog post.

* Techdirt:  The View From Somewhere: The Press Needs To Be Anti-Partisan, Not Bi-Partisan

* Harpers: Toward an ethical archive of the web

* Phys.org: Red-light cameras don’t reduce traffic accidents or improve public safety: analysis

* NY Times: Five Times the Internet Was Actually Fun in 2018