Miscellaneous Internet Free Speech Cases

Vernor v. Autodesk

Public Citizen represents an eBay vendor in a case against Autodesk, a California-based software company. The suit alleges that Autodesk used its copyright to suppress competition from the sale of used copies of its products online, leading to higher prices for consumers. Although Autodesk claims that its shrink-wrap license prohibits resale of its products, Public Citizen argues that the contract language is unlawful under the Copyright Act, which guarantees that the owner of a copyrighted product can resell that product without permission. In October 2009, the court ruled that Autodesk sells, rather than licenses, its software, and therefore that Vernor is permitted to resell it.

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Barnes v. Yahoo!,Inc.

The Court of Appeals for the Ninth Circuit held that the service provider immunity provisions of the Communications Decency Act bar an Oregon woman from bringing a tort suit against Yahoo! for failing to remove fraudulent profiles posted by her ex-boyfriend, but that, once Yahoo! promised to remove them, then failed to do so, she could sue on a promissory estoppel theory. In the course of its opinion, the court said in dictum that because CDA immunity is an affirmative defense, it cannot be raised on a motion to dismiss, and the court apparently said as well that CDA does not provide protection against claims under federal law. Public Citizen, joined by other public interest and civil liberties groups, filed a brief urging the Ninth Circuit to retract the dictum.

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DirectBuy and their lawyers at Dozier Internet Law

In a recent trend, lawyers who send baseless letters threatening to sue over online complaints, but do not want themselves or their clients to be embarrassed by public discussion of their claims, have taken to threatening to sue over posting of the demand letters.

Public Citizen has replied to such a letter, picking apart the legal claims and explaining as well that the doctrine of fair use allows demand letters to be posted online.

Read more on the Consumer Law & Policy Blog.

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Dudnikov and Meadors v. Chalk & Vermilion Fine Arts, Inc., and SevenArts, Ltd.

Karen Dudnikov and Michael Meadors filed this case against Chalk & Vermilion Fine Arts, Inc., and SevenArts, Ltd., claiming that the companies wrongfully invoked the notice-and-takedown provisions of the Digital Millennium Copyright Act to interfere with their sale of parody fabric on eBay. The companies persuaded the district court to dismiss the case on the ground that it should have been filed in New York or Great Britain, where the companies are headquartered, rather than in the plaintiffs' home state of Colorado. On appeal, Public Citizen is arguing that those unfairly targeted by illegitimate claims of infringement should be able to defend their rights in their home state, without being forced to litigate in a foreign jurisdiction. Otherwise, companies could interfere with critical Internet sites at will, leaving those targeted without a reasonable and affordable remedy.

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Quigley v. Giblin

Members of the International Union of Operating Engineers sued their union for adopting a rule requiring union members who create web sites about union election contests to "password protect" the sites so that only members of the union can visit the sites. The members argue that the federal Union Members' Bill of Rights guarantees their right to speak publicly about union affairs, not just to other union members, and that in any event the password protection requirement imposes unjustified limits on speech even to other union members. The suit also contends that a union rule that threatens large fines against members who fail to exhaust intra-union remedies violates the right to sue also guaranteed by the Union Members' Bill of Rights, Title I of the LMRDA.

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SIU v. Swanson

Plaintiff, the Seafarers International Union, and its lawyers sought a temporary injunction preventing Robert Swanson from criticizing either the Union or the Paul McAndrew Law Firm on his website. The District Court for Clinton County, Iowa denied the injunction as to the Union, but granted it on behalf of the law firm. Public Citizen moved for interlocutory review of the injunction, which constitutes an unconstitutional prior restraint granted on behalf of a non-party to the lawsuit.

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Kopp v. Vivendi Universal Games, et al.

The lawsuit, filed in U.S. District Court for the Central District of California, was brought to restore the right of Brian Kopp of Bronson, Fla., to sell a guidebook containing tips on how to play the video game "World of Warcraft." He was blocked from selling it on eBay after the video game maker, Irvine, Calif.-based Blizzard Entertainment, Inc., invoked the provisions of the Digital Millennium Copyright Act (DMCA) by claiming that the guide violated its copyright and trademark in the game. Blizzard, its parent company Vivendi Universal Games Inc. of Los Angeles, and the Washington, D.C.-based Entertainment Software Association (ESA) agreed to settle the case, withdrawing their claims of copyright and trademark infringement and allowing Kopp to re-list his guide on eBay.

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ECRI v. Guidant Corporation

The lawsuit, filed late last week in the U.S. District Court for the Eastern District of Pennsylvania, seeks to guarantee ECRI (Emergency Care Research Institute), the nation's leading independent medical product testing organization, the right to publish information about Guidant's medical devices. ECRI's guide is intended to assist hospitals, health care consultants, group purchasing organizations, health plans and government agencies with decisions about the cost-effectiveness of various competing medical devices that they are considering.

Guidant recently developed a business model purportedly requiring all of its customers to keep the prices it charges for its products confidential. Despite the fact that ECRI and other members of the public did not know of this new business model or consent to be bound by confidentiality clauses in Guidant's contracts with its customers, Guidant claims that the public is bound to obey its contracts with customers and therefore ECRI should not be allowed to publish Guidant's product prices.

Guidant's claims of contract interference are unfounded because ECRI has not used unlawful means to obtain information about the prices that hospitals pay for Guidant's medical devices and because the First Amendment and the Due Process Clause prohibit Guidant from binding third parties to conditions they never agreed to, the suit says. Moreover, Guidant's attempt to suppress publication of product prices also contravenes the strong public policy favoring price transparency. Under Guidant's business model, even pacemaker patients and implanting physicians are forbidden from knowing the price of the device.

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Nevyas v. Morgan

A dissatisfied patient of Lasik surgery created a web site that charged his doctors with being at fault for leaving him legally blind. When initially threatened by the doctors with suit for defamation, the patient took down his web site while he rewrote the challenged criticism. After he restored his criticisms to the Internet, the doctors sued claiming that, by taking down his web site in order to avoid suit, the patient was implicitly agreeing not to criticize them online. Public Citizen represents the patient on appeal from an injunction issued by a Pennsylvania state court trial judge that accepted the doctor's theory.

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Nickolas v. Fletcher et al.

Public Citizen filed suit against the governor of Kentucky on behalf of an online journalist, challenging the state's policy of selectively blocking access on state computers to certain websites that the state defines as "blogs." The state decided to block access to the award-winning website on Kentucky politics, BluegrassReport.org, the day after its author was quoted in a front-page New York Times article strongly criticizing the governor. The lawsuit argues that the state's censorship of sites it classifies as blogs is arbitrary, standardless, and constitutes content-based discrimination against non-traditional news websites in violation of the First Amendment and the Equal Protection Clause of the U.S. Constitution.

Bank Julius Baer & Co. v. Wikileaks

A federal judge issued a Temporary Restraining Order that barred Wikileaks, an Internet community with web sites hosted all over the world on which the public can post "leaked" documents that may expose government and corporate wrongdoing, from posting documents leaked from a private Swiss bank. The judge also issued a "permanent injunction" against the domain name registrar that both froze the domain name wikileaks.org (so that it could not be moved to a different registrar) and disabled the name so that it could not refer to anything more than a blank page. This permanent injunction, which was submitted with the consent of the domain name registrar, would if successful have prevented public access to ANY of the documents or comments on documents that appear on wikileaks.org. (In fact, the order was unsuccessful because the foreign Wikileaks sites, which carry the same information, were unaffected).

Public Citizen is concerned with the First Amendment and the issue of prior restraint, but in attacking the orders we decided to focus on some more technical issues that neither the lawyers in the case nor, apparently, the judge had noticed. Thus, earlier today, along with the California First Amendment Coalition, we filed a brief pointing out that the case did not even qualify for federal court jurisdiction because there are subjects of foreign states on both sides of the case -- the Swiss bank on one side, and Wikileaks, many of whose members are abroad, on the other side. In addition, we point out that the main cause of action on which the bank relied, section 17200 of the California Business and Professions Code, applies only to unfair or unlawful "business practices" and hence does not apply to completely non-commercial web sites like Wikileaks.

The brief, as well as three affidavits explaining the importance of access to leaked documents and the stake that Public Citizen and the California First Amendment Coalition have in the stake (thus allowing them to intervene) appear below.

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