Internet Library of Law
and Court Decisions

Internet Service Provider - Internet Library of Law and Court Decisions - Updated January 31, 2008

Court denies bloggers' motion for a protective order, which sought to quash a subpoena served by plaintiff Apple Computer, Inc. ("Apple") on Nfox, the e-mail service provider for the blog PowerPage.  The subpoena sought materials, including e-mails, that would permit Apple to identify the individual(s) who transmitted trade secret information about an Apple product to PowerPage, which information PowerPage subsequently published on its blog/website.  The Court held that the bloggers were not entitled to such relief under California's 'Shield Law,' as that statute only protects journalists from being found in contempt for failing to produce information, and does not support a motion to quash.  Similarly, such relief could not be grounded on the privilege afforded journalists under the First Amendment, as this privilege cannot be used to prevent the disclosure of information related to criminal activity such as that at issue here, the disclosure of trade secrets.  Because Apple had made a prima facie case that a crime had occurred, it was entitled to the requested discovery.

Communications Decency Act preempts state law claims against ISP for negligence, breach of contract, intentional infliction of emotional distress, alter ego liability, injunctive relief and violation of civil rights arising from IPS's distribution of material written by another that contained derogatory comments about plaintiffs, including that they were the "ring leaders" of an "international conspiracy" to further "Satanic Ritual Abuse" of children.

Court upholds validity of exculpatory clause in the parties’ contract, which bars plaintiff from recovering consequential damages as a result of defendant’s alleged breach of the agreement.  As a result, the Court granted defendant’s motion for summary judgment, and dismissed plaintiff’s claims for consequential damages.  These claims arose out of defendant’s termination of the parties’ agreement, and refusal to provide plaintiff with internet connectivity services, due to complaints received by defendant that plaintiff was engaged in ‘spamming other customers’ in violation of defendant’s acceptable use policy.

In this defamation suit, the Ninth Circuit Court of Appeals holds that the operator of a listserv and website is a user of interactive computer services entitled to the protections of the Communications Decency Act ("CDA") against liability arising out of his publication of information provided by another information provider.  Because, however, the author of the information at issue claimed he did not mean for the defendant operator of the listserv to publish it, the Ninth Circuit remanded the case to the District Court for a determination as to whether the listserv operator was entitled to immunity under the CDA in this particular case.  Such immunity should be granted, held the Ninth Circuit, if the information in question was provided to the listserv operator by a third party under circumstances in which a reasonable person would conclude that the third party provided the information for publication on the Internet.  The Ninth Circuit accordingly vacated so much of the District Court's decision which denied defendant's motion to dismiss this defamation action under California's Anti-SLAPP statute, which motion was to be reconsidered on remand.  The Ninth Circuit also affirmed the District Court's rejection of plaintiff's defamation claims against Mosler, which were predicated solely on its placement of ads on the website at issue.

Court holds that the Communications Decency Act ("CDA") immunizes defendant Craigslist, Inc. ("Craigslist") from liability for publishing housing ads authored by third parties that allegedly violate the Fair Housing Act, 42 U.S.C. § 3604(c) ("FHA").  In reaching this result, the Court held that the immunity afforded internet service providers under section 230(c)(1) of the CDA only extends to claims seeking to hold an ISP liable as a publisher for content authored by third parties, and not to all claims arising out of the ISP's role in giving the public access to such content.  Because the FHA claims at issue were premised on Craigslist's publication of offensive ads authored by third parties, the Court held they were barred by the immunity granted under Section 230(c)(1).

Fourth Circuit holds that web site operator is not guilty of direct copyright infringement as a result of the posting on its site by third parties of images of commercial real estate in which plaintiffs hold the copyright.  In reaching this result, the Court reaffirms the validity of Religious Technology Center v. Netcom, which holds that a party must engage in "volitional conduct" that contributes to the infringement to be liable for direct copyright infringement. 

Importantly, the Court reached this result notwithstanding the fact that defendant's involvement in the posting of images to its site was not completely passive - rather defendant conducted a limited screening of all images presented by third parties to determine if they should be posted, eliminating those that either 1) exhibited obvious evidence of copyright infringement (such as a copyright notice in someone other than the poster) or 2) did not depict commercial real estate.

In a strong dissent, Circuit Judge Gregory argued that because of this gatekeeping activity, defendant's actions were not passive and thus were not entitled to protection under Netcom.  According to Judge Gregory, Netcom protects a defendant only when its involvement in the copying of copyrighted work is passive, and the automatic result of the operation of its facilities by a third party.

Relying heavily on Zeran v. AOL, 129 F.2d 327 (4th Cir. 1997) cert. denied, 118 S.Ct. 2341 (1998), the Florida District Court of Appeal affirmed the lower court's holding that the Communications Decency Act preempts state law claims advanced against an information service provider arising out of the ISP's allegedly improper participation in the sale or distribution of obscene material due to its alleged notice that a third party was using the ISP's chat rooms to market pornographic materials. The Court also affirmed that lower court's holding that the CDA preempts state law claims arising out of events that occurred prior to the CDA's enactment, but which claims were not asserted until after the CDA's enactment.

Communications Decency Act preempts state law claim of improper participation in sale or distribution of obscene material asserted against information service provider as a result of its alleged notice that third party was using ISP's chat rooms to market pornographic materials. Court further held that CDA applies retroactively to preempt state law claims arising out of events that occurred prior to the CDA's enactment, but which claims were not asserted until after the CDA's enactment.

Court granted defendant America Online's motion for summary judgment, and dismissed copyright infringement claims advanced by plaintiff author as a result of the posting of his works by defendant Robertson on a Usenet newsgroup made available by AOL to its users and others, and stored for a period of 14 days on AOL's servers.  AOL's involvement in these infringing activities was passive - it did not post nor direct the posting of the infringing material to the Usenet newsgroup in question.  Rather, the claims against it were predicated on its agreement, via peering agreements, to store the content of the Usenet newsgroup to which this offending post was made on its servers, and to transmit that content to, and make it available for viewing by, others.

The court held that AOL could not be liable for direct copyright infringement, because such passive involvement in the infringing activity at issue was insufficient to sustain a direct copyright infringement claim.  The court similarly rejected plaintiff's claim that AOL was liable on a theory of vicarious copyright infringement, because it had neither the right and ability to supervise Robertson's infringing activity, nor a direct financial interest therein.  The court held that AOL's ability to block access (over its systems) to the infringing materials in question did not give it the requisite ability to control the infringing activity.  Rather, because AOL could not prevent Robertson from acting, it did not have the requisite ability to control the infringing activities necessary to make AOL vicariously liable for the acts of copyright infringement Robertson initiated.  Nor did AOL derive the necessary direct financial benefit from this infringing activity.  The court held that this required AOL to receive a substantial or significant benefit from the posting of the Usenet material in question, which the evidence showed it did not receive.

The court did, however, hold that issues of fact precluded it from determining whether AOL could be liable for the acts at issue on a theory of contributory infringement.  Under such a theory, "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be liable as a 'contributory infringer.'"  Here the court held that issues of fact existed as to whether AOL was a contributory infringer, given the fact that plaintiff's attorneys had sent an e-mail to an AOL designated address that informed AOL of the infringing activity in question, after which AOL continued to allow the material in question to be posted on its servers, and made available to others.  The court held that issues of fact existed as to whether AOL, which it found had not received this e-mail, should nonetheless be charged with notice thereof given its designation of the e-mail address to which it was sent with the US Copyright Office.  In reaching this conclusion, the court held that "providing a service that allows for the automatic distribution of all Usenet postings, infringing and noninfringing, can constitute a material contribution [to the infringing activities and hence expose the ISP to liability for contributory infringement] when the ISP knows or should know of infringing activity on its system yet continues to aid in [its] accomplishment."

Nonetheless, the court dismissed this claim, holding that AOL was protected therefrom by operation of the safe harbor provisions of section 512(a) of the Digital Millennium Copyright Act.  This section protects a qualifying internet service provider from liability for copyright infringement by reason of the intermediate and transient storage of digital material (such as e-mails) in the course of transmitting, routing or providing connections thereto.  The court held that AOL's practice of storing the Usenet postings in question on its servers for a period of 14 days was an intermediate and transient storage for the purpose of the DMCA, and that it met the other requirements of the DMCA necessary to obtain the protection of this provision.  The court accordingly dismissed plaintiff's claim for contributory copyright infringement against AOL.

Affirming in part and reversing in part the court below, the Ninth Circuit grants so much of defendant America Online's motion for summary judgment which sought dismissal of claims of vicarious copyright infringement advanced by the plaintiff author.  These claims arose out of  the posting of plaintiff's works by defendant Robertson on a Usenet newsgroup made available by AOL to its users and others, and stored for a period of 14 days on AOL's servers.  AOL's involvement in these infringing activities was passive - it neither posted nor directed the posting of the infringing material to the Usenet newsgroup in question.  Rather, the claims against AOL were predicated on its commitment, via peering agreements, to store the content of the Usenet newsgroup to which this offending post was made on its servers, and to transmit that content to, and make it available for viewing by, others.

The Ninth Circuit affirmed the District Court's dismissal of plaintiff's vicarious copyright infringement claim, because plaintiff had failed to submit evidence that AOL "received a direct financial benefit from providing access to the infringing material" to its users.  Thus, "there [was] no evidence that indicate[d] that AOL customers either subscribed because of the availabil[ity of] infringing material or cancelled subscriptions because it was no longer available."

The Ninth Circuit also affirmed so much of the District Court's decision that denied AOL's motion to dismiss the contributory infringement claims plaintiff advanced.  "One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be liable as a 'contributory infringer.'"  Here the court held that issues of fact existed as to whether AOL had the requisite knowledge to be guilty of contributory infringement, given the fact that plaintiff's attorneys had sent an e-mail to an AOL designated DMCA notice address that informed AOL of the infringing activity in question, after which AOL continued to allow the material in question to be posted on its servers, and made available to others.  The court held that issues of fact existed as to whether AOL, which it found had not actually received this e-mail, should nonetheless be charged with notice thereof given its failure to continue to operate this e-mail address, which it had designated with the US Copyright Office as the address to which DMCA notices of copyright infringement were to be sent.    The Ninth Circuit held that this knowledge, coupled with AOL's storage of the infringing material on its servers, and provision of access thereto to AOL users, could render AOL liable for contributory copyright infringement.

The Ninth Circuit reversed the District Court's determination that AOL was protected from this potential liability for contributory copyright infringement by operation of the safe harbor provisions of section 512(a) of the Digital Millennium Copyright Act.  This section protects a qualifying internet service provider from liability for copyright infringement by reason of the intermediate and transient storage of digital material (such as e-mails) in the course of transmitting, routing or providing connections thereto.  The Ninth Circuit, affirming the District Court, held that AOL's practice of storing the Usenet postings in question on its servers for a period of 14 days constituted intermediate and transient storage in the course of transmitting or providing connection to digital material that qualified for protection if AOL met the requirements of the  safe harbor provisions of Section 512(a) of the DMCA.  However, reversing the District Court, the Ninth Circuit held that issues of fact existed as to whether AOL had reasonably implemented a polity to terminate repeat infringers, given, as stated above, that the AOL e-mail address to which DMCA notices of infringement were to be sent was not operational.  As implementation of such a policy was a prerequisite to entitlement to the protections of the DMCA, this branch of AOL's summary judgment motion was denied.

Finally, the District Court held that AOL could not be liable for direct copyright infringement, because AOL's passive involvement in the infringing activity at issue was insufficient to sustain a direct copyright infringement claim.  This claim was "abandoned" by Ellison on appeal.

Affirming the decision of the court below, the Third Circuit holds that the Communications Decency Act ("CDA") immunizes America Online ("AOL") from claims arising out of the transmission by unrelated third parties in an AOL chat room of (i) a "punter program", which disrupts the operation of the recipient's computer, and (ii) defamatory messages concerning the plaintiff.  The Third Circuit further holds that AOL's allegedly negligent failure to prevent such events from occurring did not breach its Member Agreement, in which it expressly disclaimed liability for the transmissions of others.

Court held that defendants, which, for a fee, provided its customers with a wide range of services, including access to the Internet as well as bulletin boards, news and stock quotes, did not violate Howard Stern's right to publicity under N.Y. Civil Rights Law §§ 50 and 51 by utilizing a photo of Stern, as well as his name, to advertise a bulletin board "debate" discussing the merits of Stern's candidacy for governor. Such use was permitted because under N.Y. Civil Rights Law §§ 50 and 51 defendant was viewed as news disseminator which was using Stern's likeliness to advertise a news product -- its bulletin board.

Defendant NAFED was guilty of direct copyright infringement because, without plaintiff's permission or authorization, NAFED obtained copies of plaintiff's copyrighted clip art and uploaded it onto computers hosting NAFED's website accesible to those using the web. Defendant Northwest, however, which hosted NAFED's site on its computers and made it available to those using the Internet, was neither liable for direct nor vicarious copyright infringement. Northwest only provided the means to copy plaintiff's work, much like the owner of a public copying machine used by a third party to copy protected material. It did not actually engage in the copying itself and accordingly, was not guilty of direct infringement. And because Northwest only received a flat fee from NAFED for its hosting activities that did not vary based on the use of NAFED's site, it did not profit from defendant NAFED's infringing activities, and hence was not guilty of vicarious infringement.

Appellate Court affirms decision of trial court, dismissing breach of contract and fraud claims advanced by plaintiffs arising out of difficulties they encountered when using defendant America Online’s services.  Plaintiffs had agreed to pay defendant American Online $19.95 per month for unlimited usage of AOL’s services.  Because of the increased demand engendered by this offer, defendant apparently did not have the capacity to provide unlimited access to its services, which in turn, resulted in plaintiffs experiencing difficulties in signing on (accessing) AOL’s services, and also in plaintiffs’ usage being interrupted by AOL when plaintiffs were bumped off AOL’s service.  In granting AOL summary judgment, the Appellate Court held that such occurrences did not breach plaintiffs’ contracts with AOL, pursuant to which AOL only agreed to provide service on an “as is, as available basis.”  The court further held that AOL did not fraudulently induce plaintiffs to sign-up for its services, both because AOL warned users that they could experience such difficulties while AOL was expanding its network capacity, and because unlimited usage, which is what plaintiffs claim was promised, does not equal unlimited 24/7 access.

Court holds that plaintiff, by clicking an "I accept" icon agreeing online to be bound by the Terms of Service governing use of an online discussion group set forth in a scrollable window, viewable ten lines at a time, was bound by the forum selection contained therein.  Finding such a clause enforceable, the Court dismissed a claim brought by plaintiff asserting that defendant Google breached this agreement, because this claim was not brought in the designated forum.

The Court also held that Section 230 of the Communications Decency Act ("CDA") immunized an ISP hosting an online discussion group from claims that its failure to remove objectionable content posted on the discussion group's web page gave rise to claims of tortious interference with contractual relations. 

Finally, the Court denied the motions of two additional defendants to dismiss the claims asserted against them for want of personal jurisdiction.  The Court held that the first defendant was subject to specific jurisdiction in New York because of its operation of a commercial website via which it sold $6000 of products a year to New York residents.  The second defendant was similarly subject to suit because he had entered into a contract with a New York company, which contract allegedly gave rise to the claims asserted against him.

Reversing the court below, the California Court of Appeals holds that the Stored Communications Act prohibits an ISP that hosted a blog's email account from disclosing e-mails sent to the blog in response to a subpoena issued in a civil litigation.  The subpoena sought production of e-mails that would permit Apple Computer ("Apple") to identify the individual(s) who transmitted trade secret information about an as yet unreleased Apple product to the blog/website Power Page, which information was the source of articles Power Page subsequently published on its blog/website.

The Court further held that petitioners, who acted as publishers of, and/or editors or reporters for, the news blogs that published the stories at issue about this Apple product, were entitled to a protective order against their disclosure of the confidential sources of their stories.  Notwithstanding Apple's claim that the information petitioners received from these services constituted trade secrets disclosed in violation of confidentiality agreements each of its employees had signed, the Court held such disclosure barred by both California's Reporter's Shield Law and the First Amendment.  The Court held that the Shield Law, which prohibits a court from holding in contempt a publisher, editor or reporter of "a newspaper, magazines or other periodical publication" for failing to disclose the source of a published story, protected petitioners, publishers and/or reporters of news blogs, from having to disclose the sources of the stories at issue.  The First Amendment similarly provided protection, given Apple's failure to fully exhaust other avenues of disclosure before pursuing discovery from petitioners.

Court holds that defendants Diebold Incorporated and Diebold Election Systems Inc. (collectively “Diebold”) violated Section 512(f) of the Digital Millennium Copyright Act (“DMCA”) by having outside counsel send DMCA take-down notices to Internet Service Providers (“ISPs”).  These notices demanded that the ISPs disable access to or remove a website containing an archive of emails prepared by Diebold employees in which “some employees acknowledged problems associated with [Diebold’s electronic voting] machines.”  Diebold claimed a copyright in this archive, which had apparently been stolen and posted on the Internet.  The take-down notices also sought to disable a hypertext link to this website, found in an online newspaper article critical of Diebold’s electronic voting machines.  The Court held that because “portions of the email archive are subject to fair use protections,” the notices constituted knowing material misrepresentations that material or activity infringes Diebold’s claimed copyright in the archive in violation of Section 512(f), exposing Diebold to liability for the damages and attorneys’ fees resulting from actions taken by the ISPs in response to these notices.  It has subsequently been reported by the Online Policy Group that Diebold paid $125,000 to plaintiffs and their attorneys in satisfaction of this claim.

The Second Circuit holds that an Internet Service Provider does not violate Title I of the Electronic Communications Privacy Act when, in the ordinary course of its business, it continues to receive and store emails sent to the email address of a terminated account holder.

Court holds that information service provider ("ISP") does not have to charge Tennessee sales tax to its Tennessee customers on fees collected for the utilization of ISP's services.  Court holds that ISP is not providing "telecommunication services," which are subject to Tennessee sales tax.  Instead, the ISP is providing information and other services, which are not.

Court dismisses cyberstalking and security law claims advanced by plaintiffs under Florida state law against defendant Lycos, holding such claims barred by the immunity afforded Lycos under Section 230 of the Communications Decency Act (“CDA”).  Such claims arose out of statements critical of plaintiff Universal Communication Systems (“UCS”) and its CEO, Michael Zwebner, that were posted by third parties on a message board found on a website operated by Lycos at the domain Raging Bull.com  Plaintiffs claimed that defendants, including Lycos, were involved in a scheme to manipulate plaintiff’s stock price.  Plaintiffs claimed that defendants shorted UCS stock, and then posted derogatory comments on RagingBull.com in an attempt to drive the stock price down.  Such a claim, held the court, sought to hold Lycos liable for its role in the publication of these statements, which were authored by third parties, and as such was barred by operation of the CDA.  The cyberstalking claim was similarly barred because the act on which such claim rested was the publication of derogatory statements on the RagingBull.com message board authored by third parties.  As such, this claim too, sought to hold Lycos liable for its role in the publication of such statements, and was barred by application of the CDA. 

The court also dismissed federal cyberstalking claims asserted by plaintiffs against Lycos under 47 USC Section 223, holding that this statute did not create a private right of action for a civil suit.

Finally, the Court dismissed trademark dilution claims advanced by plaintiffs under Florida state law.  These claims were premised on the use of UCS’ trademark as the name for a message board on Raging Bull.com at which third parties posted statements critical of plaintiffs.  The Court held that, despite the fact that the message boards contained advertising, such a use did not constitute the requisite use in commerce of plaintiffs’ mark.  In addition, such use of plaintiffs’ mark to describe a message board that contained statements about plaintiffs was not actionable under the dilution act.

Quick Hits

Denying in large part defendants’ motion to dismiss, the Court held that plaintiff, an internet service provider, stated claims under both CAN-SPAM and California Business and Professions Code Section 17529 et seq., as a result of the transmission of allegedly deceptive and unsolicited commercial email to plaintiff’s servers.  These emails were allegedly sent to generate leads for defendants mortgage brokers’ businesses.  The complaint alleged that the emails in question were sent by ‘spammer defendants’ at the request of ‘lead generators’ who, in turn, had contracts with the defendant mortgage brokers to provide leads of prospective customers.  The Complaint alleged that the mortgage brokers “knew or consciously avoid knowing” that the lead generators and spammer defendants were violating CAN-SPAM, and of the injury being cause plaintiff thereby.  The Complaint further alleged that the emails at issue violated CAN-SPAM both because they contained false and misleading headers, indicating that they were purportedly sent from domains that were registered to unknown or false entities, and because they contained misleading subject lines that did not accurately describe the content of the emails, and instead implied that the user’s loan was approved or pre-approved.

A party can be guilty of violating CAN-SPAM even if it did not transmit the email at issue.  As explained by the Court, “to state a claim against the Mortgage Defendants under the CAN-SPAM Act, plaintiff must ‘prove that they paid or induced the Spammer defendants to initiate commercial email messages and that the Mortgage Defendants acted either with actual knowledge, or by consciously avoiding knowing, that the Spammer Defendants’ acts were illegal.”  Because the plaintiff’s complaint did just that, the Court denied, in large part, defendants’ motion to dismiss.

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Court holds CDA Section 230 immunizes Yahoo from civil liability arising out of its hosting of an online ‘e-group’ named ‘Candyman’ on which illegal images depicting child pornography were exchanged.  The co-defendant, Mark Bates, was convicted for his involvement as the moderator of this online forum.  Plaintiff brought claims under 18 U.S.C. Section 2252A, which creates a private right of action for those aggrieved by a violation of 18 U.S.C. Section 2252, a criminal statute that prohibits the dissemination of child pornography.  The Court, in a case of first impression, held that the CDA immunized Yahoo from such civil claims, as well as claims of negligence, negligence per se, intentional infliction of emotional distress, invasion of privacy and civil conspiracy, arising out of its hosting of this forum.  The Court reached this result notwithstanding the fact that 47 U.S.C. Section 230(e)(1), titled “no effect on criminal law,” provides “nothing in this section shall be construed to impair the enforcement of  … Chapter … 110 (relating to sexual exploitation of children) of Title 18, or any other Federal Criminal Statute.”  Said the Court:

while the facts of a child pornography case such as this one may be highly offensive, Congress has decided that the parties to be punished and deterred are not the internet service providers but rather those who created and posted the illegal material, such as defendant Mark Bates, the moderator of the ‘Candyman’ e-group.

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Court grants Church’s petition pursuant to Fed. R. Civ. P. Rule 27, and directs respondent Cablevision Lightpath Inc. (“Cablevision”) to disclose the identity of the subscriber to whom a particular IP address was assigned.  Petitioner alleged that the IP address in question was used to access without authorization email accounts the Church supplied to seven employees.  Petitioner also alleged that this IP address was used to improperly send an email from one of those accounts, in the name of the account holder, that advised other company employees that they had been terminated for poor job performance.  Petitioner alleged that this conduct violated the Stored Communications Act, 18 U.S.C. Section 2701.

Petitioner sought the requested discovery to “preserve testimony,” as it had been advised by respondent Cablevision that in the ordinary course of business, it would delete the requested information within 90 days of the email transactions in question.

The Court found that petitioner had made the requisite showing for relief under Fed. R. Civ. P. Rule 27 and directed Cablevision to disclose the requested information.  In reaching this result, the Court held that petitioner’s need for disclosure outweighed any First Amendment right of the speaker in question to maintain anonymity.  In so holding the Court analyzed five factors: “(1) a concrete showing of a prima facie claim of actionable harm; (2) specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed information; (4) a central need for the subpoenaed information to advance the claim, and (5) the party’s expectation of privacy.”  The Court found each of these factors favored the requested disclosure.  Petitioner had made out a prima facie case that the individual in question violated the Stored Communications Act by improperly accessing employee email accounts without authorization.  Because of the nature of the challenged conduct – such improper access, and the use thereof to impersonate one of the account holders – the court further held that the individual in question had a low expectation of privacy in maintaining the anonymity of her actions.  Petitioner’s request was narrowly tailored to seek only the identity of the speaker from Cablevision, the only known source of such information.  Finally, the court held that the requested information – the identity of the speaker in question -- was needed to permit petitioner to bring a claim seeking redress for the wrongs at issue.  The Court accordingly directed disclosure.

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Court holds that an individual who access America Online’s (“AOL”) services via the account of another is not bound by its Terms of Service merely as a result of such use, absent notice that the Terms provide that by such use, he is agreeing to be bound thereby.  The Court stated that “the Second Circuit seems to require that the license terms appear on the screen, in view of the user, for the user to be on notice of them.”  In this case, the user claims that he was able to access AOL’s services via his step-father’s account without either being presented with AOL’s Terms of Service, or being asked to accept them.
 
The Court further held, however, that by accessing AOL’s service via the account of another, plaintiff became a sublicensee, with no greater rights to use AOL’s service than the actual account holder himself.  As that account holder himself had agreed to be bound to AOL’s Terms of Service when he signed up for its service, plaintiff too was bound by those Terms of Service.

As a result, the Court held that plaintiff was bound by the Forum selection clause contained in AOL’s Terms of Service, and accordingly transferred the case to Virginia, where the clause mandated all disputes be litigated.

The Digital Millennium Copyright Act (“DMCA”), section 17 U.S.C. Section 512 (h), does not permit copyright owners and their representatives to obtain and serve subpoenas on internet service providers to obtain personal information about an ISP’s subscribers who are alleged to be transmitting copyrighted works via the internet using so-called ‘peer to peer’ or ‘P2P’ file sharing computer programs, where the ISP acts solely as a conduit for the transmission of material by others.  The text and structure of the DMCA require the ISP to be able both to locate and remove the allegedly infringing material before a subpoena can be issued against it.  The Court based this holding on the requirements of the Act which mandate that a subpoena be accompanied by the notice described in section 512(c)(3)(A) of the DMCA.  Because an ISP cannot remove such material when it acts as a mere conduit, such an ISP cannot be served with a subpoena under the DMCA.  The First Circuit accordingly reversed the decision of the District Court below, and directed that the subpoenas at issue, seeking the identity of individuals who purportedly traded and made available MP3s via P2P programs such Kazaa, be quashed.  In reaching this result, the First Circuit followed and found persuasive the reasoning of the DC Circuit court in RIAA v. Verizon, 351 F.3d 1229 (D.C. Cir., 2003).  

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Affirming the Court below, the Fifth Circuit holds that the University of Texas at Austin (“UT”) can block unsolicited commercial email sent by plaintiff White Buffalo Ventures (“White Buffalo”) to UT students that promote plaintiff’s online dating services.  Importantly, UT can take such action notwithstanding the fact that White Buffalo’s commercial emails comply with CAN-SPAM.

In reaching this result, the Fifth Circuit rejected White Buffalo’s arguments that UT’s conduct constituted state action preempted by CAN-SPAM.  The Court held that UT was a state actor, and that its determination to block unsolicited commercial email was a state regulation that fell within the ambit of CAN-SPAM’s preemption clause, found in section 7707(b)(1).  This section provides that CAN-SPAM preempts state regulation of email unless such regulation ‘prohibits falsity or deception’ in the email.

However, the statute further provides that ‘nothing in this chapter shall be construed to have any effect on the lawfulness or unlawfulness … of the adoption, implementation or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay , handle or store certain types of electronic mail messages.’  Section 7707(c).   As the provider of Internet access service – students are enabled by UT to access the internet via its wireless network, and to use email addresses UT provides – this section expressly permitted UT to adopt a policy blocking those who send spam to its network.

The Fifth Circuit held that Section 7707(c) conflicts with Section 7707(b)(1), and thus draws into question the limits of the preemptive effect of CAN-SPAM.   Given these conflicting provisions, held the Court, the presumption against preemption counseled against finding UT’s regulations invalidated by CAN-SPAM.  As such, the Court rejected White Buffalo’s argument that CAN-SPAM mandated that UT’s policies be invalidated on the ground that they ran afoul of CAN-SPAM, or were preempted thereby.

The Court similarly rejected White Buffalo’s claim that UT’s bar on the transmission of its commercial emails ran afoul of the First Amendment.  The Court held that the regulation was reasonably calculated to protect a substantial governmental interest – protecting users of its email network from the hassle associated with unwanted spam – and was no more extensive than necessary to protect that interest. 

The Fifth Circuit did hold that an absolute ban on the transmission of White Buffalo’s emails may be an overly broad restriction – from a First Amendment prospective – if the only interest protected was the capacity of UT’s system to handle the needs of its user community.  Summary judgment was inappropriate, on the record then before the Court, to sustain such a contention.  

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Additional cases can be found in the Defamation/Libel/Communications Decency Act and Subpoena sections of the Internet Library.