16 UNIT TWO: TORTS AND CRIMES
“hackers” who have posted code-cracking programs on the Internet so that DVDs can be copied numerous
times.
APPLYING THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998
Almost as soon as encryption technology was used to safeguard the contents of DVDs, the code was
cracked by a group of hackers, including nineteen-year-old Norwegian John Johansen. His decryption
program, called DeCCS, was quickly made available at various sites on the Internet including 2600.com,
owned by Ed Corly. Almost immediately after DeCCS was posted, a group of movie companies, including
Disney and Twentieth Century-Fox, filed suit.
The defendants argued that software programs designed to break encryption schemes were a form of
In what was seen as a victory for the motion picture industry, a federal district court ruled, in Universal
City Studios, Inc. v. Reimerdes,a that DeCCS violated the Digital Millennium Copyright Act (DMCA) of 1998.
As noted elsewhere, among other things the DMCA prohibits the circumvention (by decryption programs, for
example) of encryption systems that are embedded in intellectual property to protect the property from piracy,
A DIFFERENT APPROACH
In November 2001, a California appellate court reviewed a case brought by a trade association of movie
industry businesses against Internet Web site operators who made DeCCS programs available from their
Web sites. The trade association asked the court to enjoin the defendants from copying, distributing,
publishing, or otherwise marketing the DeCCS computer program because, by doing so, the defendants were,
by necessity, disclosing or using the trade secrets contained in the encryption programs.
The California appellate court weighed in on the side of free speech and refused to grant the injunction.
protection offered by the First Amendment. The California legislature is free to enact laws to protect trade
THE DEBATE CONTINUES
If you buy a book, you can read it, throw it away, give it to someone else, or sell it to a used bookstore.
Once you have bought it, you can legally do just about anything with it except make copies for resale. There
is no way that the owner of the intellectual property contained in that book can insert an encryption system to
CHAPTER 9: INTERNET LAW, SOCIAL MEDIA, AND PRIVACY 17
WHERE DO YOU STAND?
At issue in the twenty-first century is the trade-off between the necessity of writers, musicians, artists, and
movie studios to profit from their work and the free flow of ideas for the public’s benefit. Movie (and music)
industry participants claim that encryption programs are necessary to prevent piracy. Others, however,
including the defendants in cases such as those discussed above, argue that the law should at least allow
B. FILE-SHARING TECHNOLOGY
File sharing over the Internet occurs through MP3 file compression and peer-to-peer (P2P) networking.
Liability for copyright infringement exists when a distributor of file-sharing software has reason to know
of the infringement and does not stop it, or could control infringing activities and benefits financially from
them.
1. Methods of File Sharing
• File sharing over the Internet can be done through peer-to-peer (P2P) networking.
2. Sharing Stored Music and Movies
MP3 file compression and music file sharing over the Internet through peer-to-peer (P2P)
3. Pirated Movies and Television
File-sharing (and pirated DVDs) creates problems for the motion picture industry. Many sites offer
software that facilitates the illegal copying of movies.
III. Social Media
Social media is the means by which people create, share, and exchange ideas and comments via the
Internet.
18 UNIT TWO: TORTS AND CRIMES
A. LEGAL ISSUES
Users can post trademarked images or copyrighted materials without the permission of the owners.
1. Impct on Litigation
2. Criminal Investigations
Social media can be used to detect and prosecute criminals.
3. Administrative Agency Investigaitons
Federal regulators can use social media posts in their investigation.
4. Employers’ Social Media Policies
B. THE ELECTRONIC COMMUNICATIONS PRIVACY ACT
Electronic monitoring may violate the Electronic Communications Privacy Act (ECPA) of 1986, which
prohibits the intentional interception of any wire or electronic communication or the intentional disclosure
or use of the information obtained by the interception.
1. Exclusions
• The “business–extension exception” permits employers to monitor employees’ electronic
2. Stored Communications
• The Stored Communications Act prohibits intentional, unauthorized access to stored electronic
communications.
ENHANCING YOUR LECTURE—
HOW TO DEVELOP AN INTERNET POLICY
Employers that make electronic communications systems (such as access to the Internet and e-mail)
available to their employees face some obvious risks. One risk is that e-mail could be used to harass other
CHAPTER 9: INTERNET LAW, SOCIAL MEDIA, AND PRIVACY 19
employees. Another risk is that employees could subject the employer to liability by reproducing, without
authorization, copyright-protected materials on the Internet. Still another risk is that confidential information
contained in e-mail messages transmitted via the Internet could be intercepted by an outside party. Finally, an
INFORM YOUR EMPLOYEES OF THE MONITORING AND OBTAIN THEIR CONSENT
First of all, you should notify your employees that you will be monitoring their Internet communications,
including their e-mail. Second, you should ask your employees to consent, in writing, to such actions.
Generally, as discussed earlier in this chapter, if employees consent to employer monitoring, they cannot
claim that their privacy rights have been invaded by such practices. You will find it easier to obtain
SPELL OUT PERMISSIBLE AND IMPERMISSIBLE INTERNET USES
Employees should be told which uses of the firm’s communications system are permissible and which
uses are prohibited. To clarify Internet policy standards, develop a comprehensive policy setting forth your
standards of Internet use and illustrate through specific examples what kinds of communications activities will
disciplinary actions, including termination.
CHECKLIST FOR THE EMPLOYER
1. Inform employees that their Internet communications will be monitored, why monitoring is necessary or
desirable, and how it will be conducted.
3. Develop a comprehensive policy statement explaining how Internet communications should and should
C. PROTECTION OF SOCIAL MEDIA PASSWORDS
D. COMPANY-WIDE SOCIAL MEDIA NETWORKS
20 UNIT TWO: TORTS AND CRIMES
1. Protection of Trade Secrets
Companies can better protect their corporate secrets on internal networks by controlling employee
2. Other Advantages
These include a reduction in the amount of e-mail and real-time information on business issues
IV. Online Defamation
Cyber torts are torts that arise from online conduct.
A. IDENTIFYING THE AUTHOR OF ONLINE DEFAMATION
Obtaining the identity of a person who posts a defamatory remark can be accomplished through a court
order.
B. LIABILITY OF INTERNET SERVICE PROVIDERS
1. General Rule
Under the Communications Decency Act (CDA) of 1996, Internet service providers (ISPs) are not
2. Exceptions
Some courts have started establishing some limits to CDA immunity.
V. Other Actions Involving Online Posts
Claims arising from online conduct can involve allegations of intentional infliction of emotional distress or
wrongful interference.
CASE SYNOPSIS—
Case 9.2: David v. Textor
communicating with or posting anything about Textor. David appealed.
Hologram USA, Inc., and Pulse Entertainment make holograms. When Pulse announced that it would
produce a Michael Jackson hologram for the Billboard Music Awards, Hologram USA filed a suit in a federal
district court against Pulse, alleging patent infringement. Pulse countered with a suit in a California state court
against Hologram USA’s owner, Alkiviades David, alleging a “business” tort. While the suits were pending,
A state intermediate appellate court reversed the injunction and remanded the case with a direction to
dismiss Textor’s petition. David’s conduct “does not constitute cyberstalking, and the injunction violates the
CHAPTER 9: INTERNET LAW, SOCIAL MEDIA, AND PRIVACY 21
First Amendment.” His posts and other communications were simply “heated rhetoric” over a business
dispute. “A reasonable person would not suffer substantial emotional distress over them. Those
communications made directly to Textor served a legitimate purpose.” The injunction was an unlawful
restraint on speech.
……………………….………………………..…………………………………………………………..………….……..
Notes and Questions
dispute could have been amicably resolved, the other suits might not have followed.
expense of the multiple suits they filed against each other.
What could these parties have done to avoid spending so much time and money on litigation? In
been different.
for cyberstalking.
Suppose that David’s posts and other online communications had amounted to extreme and
ADDITIONAL CASES ADDRESSING THIS ISSUE—
22 UNIT TWO: TORTS AND CRIMES
Online Defamation—Identifying the Author
Cases involving discovery requests seeking the identity of anonymous posters of allegedly defamatory
statements include the following.
• Thomson v. Doe, __ Wash.App. __, __ P.3d __, 2015 WL 4086923 (Div. 1 2015) (lawyer review Web site
would not be compelled to comply with subpoena seeking identify of anonymous poster, who posted a
negative review of attorney on site, when attorney failed to make a prima facie showing of defamation).
V. Privacy
The right to privacy is guaranteed by at least one interpretation of the bill of rights and by some state
constitutions.
CHAPTER 9: INTERNET LAW, SOCIAL MEDIA, AND PRIVACY 23
A. REASONABLE EXPECTATION OF PRIVACY
A person must have a reasonable expectation of privacy to maintain a suit for the invasion of privacy.
This exists when entering personal banking or credit-card information online, but not in posts on Twitter
or other social media.
CASE SYNOPSIS—
Case 9.3: Nucci v. Target Corp.
Maria Nucci filed a suit in a Florida state court against Target Corp., alleging that she suffered an injury
when she slipped and fell on a “foreign substance” on the floor of a Target store. Target filed a motion to
compel an inspection of Nucci’s Facebook profile, which included 1,249 photos. Nucci claimed that she had a
reasonable expectation of privacy in the profile and Target’s access would invade that privacy right. The court
issued an order to compel discovery of certain photos, including some of the items on Nucci’s Facebook
page. Nucci petitioned for relief from the order.
……………………….………………………..…………………………………………………………..………….……..
Notes and Questions
What did the defendant hope to gain by viewing the plaintiff’s posted photos? Presumably the
B. DATA COLLECTION AND COOKIES
Cookies (invisible files that computers and mobile devices create to track a user’s browsing activities)
C. INTERNET COMPANIES’ PRIVACY POLICIES
The Federal Trade Commission (FTC) investigates consumer complaints of privacy violations and has
Internet companies’ consent to review their privacy practices.
TEACHING SUGGESTIONS
1. It could be pointed out that disputes arising in the areas covered in this chapter, particularly those related
to intellectual property, are among the most volatile and most extensively—and expensively—litigated
24 UNIT TWO: TORTS AND CRIMES
disputes in the law.
2. Ask students to research online the following question: how does a business choose and protect a
3. More than most of the other chapters in this textbook, the material in this chapter can be researched
4. Students may be surprised to learn that their e-mail may not be private, technologically or legally, when it
Cyberlaw Link
Questions that students might be asked include the following.
• Is linking to a Web site without authorization an infringement of the site’s copyright? Is it a
violation of trademark law? Would it make any difference if the URL included a person’s name
or a trademark?
• Should the laws that govern the topics discussed in this chapter be made uniform throughout
the world? Should there always be different laws for different technologies?
• Should a company be entitled to monitor the use of its products after they have been sold? If
so, should it be a crime to resist this monitoring?
• What are the legal questions and complications of monitoring employees’ use of the Internet
during working hours? What are some of the key points of a good policy regarding the use,
and monitoring of the use, of the Internet in the workplace?
DISCUSSION QUESTIONS
1. Do Internet service providers have an ethical duty to advise their users if the information that the
CHAPTER 9: INTERNET LAW, SOCIAL MEDIA, AND PRIVACY 25
2. Should the courts continue to regard the CDA’s grant of immunity to Internet service providers as
vigorously as in the past? Why or why not? One of Congress’s goals in enacting the CDA was to encourage “the
3. Why are Internet service providers (ISPs) exempt from liability, under some statutes, for the actions of
their customers? Sometimes it is viewed as unfair to impose liability on an ISP for the actions of its customers, who
4. How might a file-sharing system, or a similar service, be put to commercially significant but
nonfringing uses? One possibility is that the service could pay copyright owners before allowing the transmission of
5. As social media becomes ever more pervasive, what can be expected to occur with respect to
trademark disputes? There will be an increase in the number of trademark disputes as the Internet expands
6. Why is copyright law important in cyberspace? The public interest in copyright law is the interest in
upholding copyrighted protection. If there were no protection for music and other works of intellectual and creative
processes, or if the copyright laws were not enforced, there would be less incentive to produce, package, and market
7. Could the winner of an Academy Award, or a Heisman Trophy, or any other award with a familiar title,
same. Could someone who has not won such an award use the trademark as a tag? This would also depend
8. Why is important to protect trademarks from trademark dilution and cybersquatting? As stated in
26 UNIT TWO: TORTS AND CRIMES
9. Are there creative works that can be shared or otherwise used by anyone without permission and
10. Considering the anonymous nature of the Internet, has defamation become an outdated legal
concept? Each day in blogs around the world, statements are posted that constitute libel. The cost of tracking down
the person who made the libelous statement is too high to justify bringing a suit against that person, however. And
ACTIVITY AND RESEARCH ASSIGNMENTS
2. In discussing trademark dilution, ask students to bring to class examples of marks and infringing marks.
Discuss as a large group whether the examples are properly identified.
EXPLANATIONS OF SELECTED FOOTNOTES IN THE TEXT
Footnote 10: Whitney Harper shared digital audio files of songs with others through a peer-to-peer
network. Maverick Recording Co. and others filed a suit in a federal district court against Harper for copyright
In Maverick Recording Co. v. Harper, the U.S. Court of Appeals for the Fifth Circuit affirmed the finding of
liability, but reversed the finding of the innocent-infringer defense, and ordered the damages increased to $750 per
infringed work. When a copyright notice appears on a work, “no weight shall be given to * * * a defendant’s
interposition of a defense based on innocent infringement.” The plaintiffs’ works included the notice. Harper’s
contention that “she was too young and naive to understand that the copyrights on published music applied to
downloaded music” was irrelevant.
When rights such as those in this case become more valuable as a result of new technology, should the
law be changed to redistribute the economic benefit of those rights? Why or why not? It might be argued that
CHAPTER 9: INTERNET LAW, SOCIAL MEDIA, AND PRIVACY 27
In this and other cases involving similar rulings, the courts have held that when the published
phonorecordings from which audio files were taken contained copyright notices, the innocent infringer
defense does not apply. It is irrelevant that the notice is not provided in the online file. Is this fair? Explain.
Some contend that labels placed on the physical copies of the CDs from which downloaded songs originate are not
Footnote 12: Jennifer O’Brien was a first-year first-grade teacher when she posted on her Facebook page
that “I’m not a teacher—I’m a warden for future criminals!” and “They had a scared straight program in school—why
couldn’t I bring first graders?” Outraged parents protested. O’Brien was charged with conduct unbecoming a
teacher—“the posting of such derogatory and demeaning comments about first-grade students showed a lack of self-
control, insensitivity and a lack of professionalism.” An administrative law judge recommended her termination.
O’Brien appealed.
In In re O’Brien, a state intermediate appellate court affirmed the final decision of the commissioner of
education adopting the ALJ’s order to remove O’Brien from her position. The court was “satisfied” with the decision for
the reasons stated by the ALJ and the commissioner in their decisions.
Would the outcome have been different if the plaintiff had been a private school teacher? It is not likely
that the outcome in this case would have been different if O’Brien had been a private school teacher, although it is
position.
Certain interests of a public employee and employer are balanced to determine whether the First
Amendment protects the employee’s Facebook posts. What are those interests? To determine whether a public
employee’s statements are protected by the First Amendment, the employee’s interest as a citizen, in commenting on
28 UNIT TWO: TORTS AND CRIMES
What did O’Brien do that constituted conduct unbecoming a tenured teacher? “Conduct unbecoming” in
this context includes any conduct that has a tendency to destroy public respect for government employees and
What penalty did the administrative law judge impose? Why? The administrative law judge (ALJ)
Would the outcome have been different if the plaintiff had apologized? Discuss. It is likely that the
outcome in this case would have been different if O’Brien had apologized. The administrative law judge (ALJ)
Footnote 17: Seven users of Yelp, a social-networking consumer review Web site, posted negative
reviews of Hadeed Carpet Cleaning Inc. of Alexandria, Virginia. Hadeed brought an action in a Virginia state court
against the users, claiming defamation. (Hadeed alleged that the reviewers were not actual customers and thus their
comments were defamatory because they falsely stated that Hadeed had provided shoddy service to each reviewer.)
When Yelp failed to comply with a subpoena seeking documents revealing the users’ identities, the court held the site
in contempt. Yelp appealed.
In Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., a state intermediate appellate court affirmed. “Without the
identity of the * * * defendants, Hadeed cannot move forward with its defamation lawsuit. There is no other option.
The identity of the * * * defendants is not only important, it is necessary.”
Do the Yelp posts qualify as commercial speech? If so, how does that affect the Doe defendants’
constitutional right to anonymity? The freedom of speech—and the freedom to speak anonymously—is not
absolute. The courts have long recognized a distinction in the level of protection that the First Amendment accords to
CHAPTER 9: INTERNET LAW, SOCIAL MEDIA, AND PRIVACY 29
Should a party be required to exhaust all other means to discover the identity of an anonymous
Footnote 19: Roommates.com, LLC, operates an online roommate matching Web site and e-mail
newsletter. Users disclose information about themselves and their roommate preferences based on age, gender, and
other characteristics, and on whether children will live in the household. The Fair Housing Councils of San Fernando
Valley and San Diego, California, filed a suit in a federal district court against Roommates.com, claiming that a
violation of the Fair Housing Act (FHA). The court held that the Communications Decency Act (CDA) barred this claim
and dismissed it. The Councils appealed. In Fair Housing Council of San Fernando Valley v. Roommates.com,
LLC, the U.S. Court of Appeals for the Ninth Circuit concluded that the CDA does not immunize Roommates.com for
all of the content on its Web site and in its e-mail newsletters. Roommates.com is “the ‘information content provider’
as to the questions and can claim no immunity for posting them on its Web site, or for forcing subscribers to answer
them as a condition of using its services.” The appellate court reversed the lower court’s summary judgment, and
remanded the case for a determination of whether Roommates.com’s acts violated the FHA.
Members of Roommates.com’s service can add “Additional Comments” to their Web-generated profiles through
an open-ended essay prompt. Does the CDA exempt Roommate from liability for publishing the content its
members provide in the “Additional Comments” portion of their profiles? In an earlier opinion, the same court