Supreme Court Takes a Pass on Wisconsin Woman's Privacy Suit Against Google

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The United States Supreme Court last week denied certiorari in Stayart v. Google, Inc. (Docket No. 12-1417), upholding the United States Court of Appeals for the Seventh Circuit's dismissal of a Wisconsin woman's invasion of privacy suit against search engine colossus Google, Inc.

Beverly Stayart filed suit against Google, alleging misappropriation (Wis. Stat. 995.50(2)(b)) and invasion of her right to publicity, based on an alleged search engine query that linked her name to Levitra, a PDE5 inhibitor drug used to treat erectile dysfunction. In refusing to hear her appeal, the High Court sided with the Seventh Circuit finding that Google could defend against the bev stayart levitra search result allegation by asserting the public interest and incidental use defenses.

The appellate court  decision noted that Stayart had sued Yahoo! in January 2010, regarding the same search phrase, one month before that result allegedly began appearing in Google searches, as illustrated by the purported April 2010, Google search results appended to her Complaint as exhibits. Essentially, both the trial and appeals courts said Stayart's own actions generated "public interest" because court documents are a matter of public interest and search engines that lead those submitting queries to those documents should be protected by the public interest defense.

Google's successful defense to the misappropriation claim is grounded in Wisconsin's law that requires "a substantial rather than an incidental connection between the use [of a person's name for commercial purposes] and the defendant's commercial purposes." The court said Stayart failed to prove Google's purported efforts to derive revenues through linking her name and levitra was substantial.

Class Action Privacy Suit Against Google Street View Given Go-Ahead by 9th Circ.

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A three-judge panel of the United States Court of Appeals for the Ninth Circuit this week affirmed a lower court's dismissal of a motion to dismiss a class-action invasion of privacy suit brought against San Francisco-based Google, Inc., concerning Street View.

In its 35-page decision in Joffe, et al. v. Google, Inc. (Case No. 11-17483), the appellate court shot down Google's claim that Street View's accumulation of data was protected by an exception to the Wiretap Act [18 U.S.C. §§ 2510-2522]. "Surely," wrote 9th Circuit Judge Jay Bybee, "Congress did not intend to condone such an intrusive and unwarranted invasion of privacy when it enacted the Wiretap Act." 

The six-year-old Street View was supposed to supplement Google Maps by offering users images of locations, but Google's vehicles wound up in a ditch when its Wi-Fi antennas captured emails, user names, passwords and other documents from unencrypted wireless networks of businesses and residences.  The company settled a lawsuit with the Attorneys General of 38 states arising from the Street View transgression last March (see "TUOL" post 3/13/13) by agreeing to pay a $7 million fine.

NY Judge: Google Must ID Anonymous Blogger

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New York Supreme Court Justice Debra A. James has ordered Google, Inc. to disclose the identity of an anonymous blogger whose two Web sites allegedly defame a Manhattan-based consumer lawyer.

As reported by the Wall St. Journal Law Blog (blogs.wsj.com), in a Stipulated Order in Fredrick Schulman v. Google, Inc. et al. (Case No. 155629/2013), Justice James ruled the plaintiff had demonstrated a potential cause of action against the creator of the sites fredrickschulmancrookedattorney.com and stopfredrickschulman.blogspot.com and was entitled to pre-action discovery identifying the blogger under CPLR sec. 3012(c).

Schulman alleges he has suffered harm to his reputation and pecuniary loss because of the "malicious" online campaign against him.  Google was ordered to notify the unnamed blogger and alert him/her that he/she may challenge the efforts to disclose his/her identity.  The court discontinued the plaintiff's action as to Google.

UPDATE: Fed Appeals Court Knocks Down Class Action Status in Epic Google/Authors Guild Struggle

In a unanimous five-page decision, the United States Court of Appeals for the Second Circuit Monday reversed a ruling affording class action status to the plaintiff in the eight-year-old litigation, The Authors Guild, Inc. et al. v. Google, Inc. (Docket No. 12-3200-cv), PaidContent.org. reported.

"We conclude that class certification was premature in the absence of a determination by the District Court of the merits of Google's 'fair use' defense," according to the appellate court ruling.  Could make for some awkward moments in Second Circuit Court cafeteria, as the United States District Court for the Southern District of New York judge being overruled here is Denny Chin, who now serves as a judge on the Second Circuit, though he continues to preside over the Authors Guild/Google case.

As reported here previously (see "TUOL" post 9/19/12), Google, Inc.'s master plan to create the planet's largest digital library--20 million plus books already have been scanned--was challenged in 2005 by The Authors Guild, a nonprofit industry group numbering some 8,500 members, as a purported copyright infringement under the Digital Millenium Copyright Act [Pub. Law 105-304]. Google has countered that neglected and difficult to find works will be more easily accessed and authors won't be harmed if its plan for world domination...er...a world library were realized.  Moreover, Google has relied on the defense against copyright infringement of fair use [17 U.S.C. sec. 107], a four-pronged test that looks at the purpose and character of the proposed use, the nature of the copyrighted work, the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole and the effect of the use on the potential market for or value of the copyrighted work to determine whether a copyright holder's consent is required before his or her material is used. 
                                                                          

                                                                                           
The appellate court panel sending back the case to their colleague Judge Chin and decertifying the class action status of the case is a positive development for Google that, among other things, means several fewer zeroes at the end of any verdict were The Authors Guild ultimately to prevail in the suit.  Google has questioned the class action status of the plaintiff throughout the case, arguing that it, in effect, caused authors who were not troubled by Google's digital scanning of books to sit in the same section as authors opposed to it.

Google Makes Nice to European Union

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Mountain View, Calif.-based Internet search engine behemoth Google, Inc., this week extended an olive branch to the European Union, offering a proposal to allay antitrust concerns, the Associated Press reported.

According to the AP article, Google proposed clearly labeling search results so that European users could differentiate between Google-sponsored search results and natural search results. The 27-nation EU Commission said Google also would display competitors' links alongside its own YouTube and Google Maps services.

The EU has been a thorn in Google's side for more than three years, investigating the company's potential abuse of its dominant market position in the Internet search field (see "TUOL" post 7/7/10).

Plaintiffs Fight to Keep Class Action Privacy Suit Against Google Alive

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United States District Court for the Northern District of California Judge Lucy H. Koh will hear arguments March 21, 2013, in Brad Scott & Todd Harrington v. Google, Inc. (Case No. 5:12-cv-03413) in deciding whether the social media giant violated California's Invasion of Privacy Act ("CIPA") [Cal. Penal Code, Pt. 1, Title 15, c.1.5, secs. 630-638].

As reported by Courthouse News Service, the plaintiffs sued Google last June, claiming Gmail scans users' emails for words and content and intercepts communications between users and non-subscribers pre-delivery and without the parties' consent.

Google, which filed a motion to dismiss the case after successfully removing the suit from state court to federal court, argues that CIPA doesn't contemplate the terms Internet, computer, email and electronic communication. Moreover, the defendant notes that Scott & Harrington, who are citizens of Alabama and Maryland respectively, have not linked their emails to California. Google further alleges that the plaintiffs have not shown they were injured by Google's purported actions and that their complaint merely alleges "their privacy rights were infringed in the abstract."

The plaintiffs counter that new technology such as employed by Google must abide by the same rules as telegraph communication and the telephone regarding users' privacy, irrespective of whether California courts have previously ruled on what plaintiffs allege is "wiretapping" and "eavesdropping."

Actress Sues Film-maker & Others Over "Innocence of Muslims" Role

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In Cindy Lee Garcia v. Google, Inc., You Tube, LLC, Nakoula Basseley Nakoula & Does 1-10 (Case No. 2:12-cv-08315-MWF-VBK), filed this week in the United States District Court for the Central District of California, an actress has alleged copyright infringement [17 U.S.C. sec. 501], libel, fraud and unfair business practices concerning her involvement in the film, The Innocence of Muslims, an amateurish anti-Muslim production blamed for inciting riots in several MidEast countries, Reuters reports.

Garcia, a Bakersfield, California, native, was unsuccessful last week in herattempt to get a California Superior Court judge to enjoin You Tube from posting the 13-minute video. The actress contends she was duped by the trailer's producer, 55-year-old Nakoula Basseley Nakoula, an Egyptian-American Coptic Christian using an alias, Sam Bacile, into believing she was appearing in an adventure film entitled Desert Warrior, rather than a video diatribe that portrays the Islamic Prophet Mohammed as a womanizing buffoon. She alleges some of her dialogue was re-dubbed without her knowledge. Nakoula's filmography is sparse, but his resume does sport a federal bank fraud conviction.

You Tube owner Google has resisted entreaties from the White House to remove the video from You Tube but has blocked it from being viewed in Muslim nations such as Egypt and Libya. Garcia will try to persuade federal Judge Michael W. Fitzgerald that the defendants are infringing on her copyrighted performance by posting the video without her approval, but Google counters that actors are not legally protected against how a film in which they appear is perceived, according to the Reuters account. 

UPDATE: Appeals Court Says Google & NSA Can Stay Mum About Alleged Relationship

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Agreeing with a lower court ruling last year (see "TUOL" post 7/19/11), the United States Circuit Court of Appeals for the D.C. Circuit last week ruled the National Security Agency need not respond to a Freedom of Information Act request [5 U.S.C. sec. 552 et seq.] regarding an agreement that the NSA may or may not have forged with Google.

The decision in Electronic Privacy Information Center v. National Security Agency (Case No. 11-5233) said the NSA need not respond at all to the FOIA request by EPIC, a public interest watchdog group, as even a refusal to comply could provide information about a possible relationship between NSA and Google.  In the parlance of the security arena, to neither confirm nor deny the existence of requested documents is a so-called Glomar response, named after a past case involving a journalist's efforts to obtain data from the CIA about an underwater vessel.

The appellate court ruled the NSA could properly invoke Exemption No. 1 of the nine FOIA exemptions, which allows a government agency to withhold: "Those documents properly classified as secret in the interest of national defense or foreign policy."

No word as yet about whether EPIC plans to appeal to the U.S. Supreme Court.

Google 'Berned' By Swiss Court

Image via WikipediaGoogle, Inc., the Mountain View, Calif.-based Internet search engine leviathan, must be doing something wrong, given that it has even managed to make the ever-neutral Swiss belligerent.

According to an Associated Press story, the Swiss Federal Administrative Court has ordered Google to guarantee anonymity regarding publication of license plates and faces before green-lighting Google's Street View project's generating of street-level photos. The ruling, which the Internet search engine company could appeal to the Swiss Supreme Federal Court, is the latest blow to Google since the company admitted "inadvertently" compiling personal data from unsecured wireless networks during the Street View mapping project (See "TUOL" post 3/22/11).

Google temporarily ceased uploading images of Swiss cities in 2009 because of complaints by Switzerland's agency charged with protecting data privacy. Canada, Australia, Germany, France, Great Britain and the Czech Republic are among nations that have taken up a cudgel against Google's Street View data gathering.