Calif. Federal Judge Denies Facebook Motion to Dismiss Privacy Suit

Image via WikipediaImage via CrunchBaseImage by Getty Images via @daylifeIn her 38-page decision last week in Fraley v. Facebook (Case No. 5:11-cv-01726), United States District Court for the Northern District of California Judge Lucy H. Koh refused to dismiss a putative class action suit against  Facebook based on the social media leviathan's use of "Sponsored Story" ads.

Although she dismissed an unjust enrichment count against Facebook, Judge Koh found Angel Fraley and her co-plaintiffs had legal standing to proceed with their claims of unfair competition and violation of California's Right of Publicity statute [Calif. Civ. Code sec. 3344]. The plaintiffs contend Facebook, without their consent, appropriated their names, likenesses and photographs for use in Facebook's "Sponsored Story" paid advertisements.

A "Sponsored Story" ad is generated when a Facebook user clicks on the raised thumb Like icon concerning a product or service, which then appears on the user's friends' Facebook page. At issue is whether that turns the user into a spokesperson/endorser of that product or service.

As reported in the Financial Times and elsewhere, Judge Koh kept the plaintiffs' suit afloat by finding "logical" the plaintiffs' argument that they should benefit from the ad revenues flowing to the defendant social network from their unwitting endorsements.  Unequivocally, Facebook's "Sponsored Story" marketing strategy has been successful.

Judge Koh specifically ruled that Facebook cannot benefit from the defense afforded by Section 230(c)(1) of the Communications Decency Act of 1996 that shields Internet Service Providers from liability as publishers. Facebook has also raised a First Amendment argument that the "Sponsored Story" ads are newsworthy, which characterizes the plaintiffs as public figures rendering newsworthy consumer opinions.

Dueling Lawyer/Columnists in Copyright Infringement Suit Over 'How-to' Articles

Image via WikipediaIn Flannery v. Poll (1:2011cv00646) filed last week in the U.S. District Court for the Western District of Texas, attorney William J. Flannery, whose WJF Institute advises lawyers on building a practice, sued California attorney Edward Poll for copyright infringement and unfair competition, alleging the defendant reprinted his articles without permission, according to a report by Courthouse News Service (CNS).

Flannery published Client Development and Relationship Management (1994), which included articles he wrote entitled "20 Questions You Should Ask Current and Prospective Clients" and "It's the Client Stupid," the CNS article noted. In his complaint, Flannery alleges he gave the American Bar Association license to reprint "It's the Client Stupid" in 2000 for an ABA publication edited by Poll.

The plaintiff claims the National Law Journal (NLJ) published a "substantially identical version" of the article in May 2002, identifying Poll as the author. Flannery claimed the NLJ agreed to reprint issues identifying him as the author after he complained and that Poll allegedly wrote him, saying the NLJ piece was his adaptation of Flannery's article and apologizing for not crediting Flannery, though claiming that he, not the ABA, received reprint permission from the plaintiff in 2000.

Flannery alleges in his complaint that the defendant has since twice reproduced the article on his Website and in the ABA online publication Law Practice Today still listing himself as the author and that Poll allegedly included a "substantially identical version" of Flannery's "20 Questions" article in a book Poll wrote entitled Attorney & Law Firm Guide to the Business of Law: Planning and Operating for Survival and Growth.

Besides damages, Flannery is seeking an injunction preventing Poll from using his articles. (Disclosure: "TUOL"'s dedicated scribe worked as an editor for the ABA years ago, during which time Attorney Poll served on the volunteer editorial board of a family law journal edited by "TUOL.")

Facebook Sues Adult Networking Co. in Trademark Case

Image by Getty Images via @daylifeIn Facebook, Inc. v. Various, Inc. et al (Case No. 4:2011-cv-01805), filed last month in the U.S. District Court for the Northern District of California, social networking giant Facebook sued an adult networking service for trademark infringement, unfair competition and cybersquatting.

Judge Saundra Brown Armstrong will hear the case in which Facebook is alleging that Various, Inc., and subsidiaries, including Traffic Cat, Inc. and GMCI Internet Operations, Inc., are capitalizing on the plaintiff's brand with its Facebookofsex.com Website.  Facebook claims the defendants' Website includes a blue "Like" button and a blue band at the top of each page, which creates confusion among site visitors and tarnishes Facebook's reputation, according to the Complaint.

A Bad Apple in the Amazon?

Image by Getty Images via @daylifeThey were still sweeping up the celebratory confetti from the launching of Seattle-based Amazon, Inc.'s  Appstore, offering applications for Google's Android smartphones, when Cupertino, Calif.-based Apple, Inc. swept in and said: "Say Hello to Litigation."

According to stories in The Los Angeles Times and Fast Company, Apple sued for unfair competition and trademark infringement over the use of the phrase Appstore, contending that its use by Amazon will confuse and mislead consumers. Amazon's digital storefront was offering for download 3,800 Android apps from the outset. Citing Microsoft's Marketplace as an example, Apple contends other mobile app retailers have managed to avoid the Appstore moniker, and expects Amazon to follow suit, as it were.

Facebook Trademark Suit Involves Different Kind of 'Poking'

This summary is not available. Please click here to view the post.

Court Squeezes LimeWire

Image via CrunchBase

LimeWire, one of the largest commercial P2P music downloading services, was rocked this week by U.S. District Court for the Southern District of New York Judge Kimba Wood, who ruled for the Recording Industry Association of America (RIAA) on its claims of copyright infringement, unfair competition, and inducing others to commit copyright infringement.

The 59-page opinion in  Arista Records, LLC et al. v. Lime Group, LLC (Case No. 1:06-cv-05936) found LimeWire, a software file sharing company, and its Chair, Mark Gorton, were both liable for inducing copyright infringement. According to the RIAA, more than 200 million copies of LimeWire's software has been downloaded to date.

Besides the free software version, LimeWire sells an "Extended Pro" version for $34.95 annually. Although it outlasted Napster and other rivals, LimeWire has not kept pace with faster competitors such as BitTorrent.  Judge Wood will meet with the litigants on June 1, where topics such as monetary damages and the possibility of the parties collaborating in the future doubtless will be addressed.