E-Commerce Law Week, Issue 444

Apparently Not All Information "Wants to Be Free"

Hackers (or "crackers") used to justify their computer break-ins with the catchy claim that "information wants to be free."  But the last decade's boom in computer crime, identity theft, and digital copyright infringement has tarnished any appeal that motto once held in the popular imagination.  Still, people may be surprised at just how restrictive the legal constraints are on unauthorized access to, or sharing of, information.  For example, people who inappropriately share an individual user code and password to access an online publication may not only be infringing a copyright, but may also be guilty of a crime.  That, anyway, is the upshot of the decision by a federal court in California in Therapeutic Research Faculty v. NBTY, Inc.  In that case, the court refused to dismiss civil claims brought against defendants who allegedly abused a limited subscription to a copyrighted medical database.  The plaintiff claimed violation of the Copyright Act, the Computer Fraud and Abuse Act, and the Electronic Communications Privacy Act.  For companies that use licensing agreements to manage their provision of copyrighted material over the Internet, the ruling may provide additional ammunition for going after unscrupulous licensees.  Moreover, since those statutes also provide the basis for criminal liability, the court's reasoning means that those who abuse a subscription to an online publication may not only be civilly liable, but could -- at least in theory -- be subject to prosecution as well.

The Road to Mass Surveillance is Paved with GPS Devices

In United States v. Garcia, the Seventh Circuit recently found that the government's use of a global positioning system (GPS) device planted on a suspect's car to track the suspect's travels was not a search or a seizure within the meaning of the Fourth Amendment.  The court therefore upheld a district court's denial of the defendant's motion to suppress evidence garnered by use of the tracking device.  But the court also expressed concern that broad use of such GPS devices could lead to a program of "mass surveillance."  Although it refused to speculate about "[w]hether and what kind of restrictions should … be placed on such surveillance," the court noted that "[t]echnological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive."  Still, given the court's ruling that the use of one GPS tracking device did not constitute a search or a seizure, it is difficult to see what the basis would be for holding that the use of many such devices violates the Fourth Amendment.  If the Seventh Circuit's view (which conflicts with views of some other circuits) prevails, those concerned about privacy will likely need to look to Congress, not the courts, to establish some limits.

Belgian Court Doesn't Waffle on Google Copyright Case

Google has made it its mission to "organize the world's information and make it universally accessible and useful."  But this quest has drawn stiff opposition from some copyright owners, who claim that, by selling ads that appear next to the short excerpts of copyrighted materials that Google's services display, the search giant is unfairly profiting from their works.  As we previously reported, Google Book Search -- which allows internet users to view limited portions of copyrighted books in response to a search -- has drawn a class action suit in New York federal court.  But it is Google News -- which displays brief snippets of news stories culled from many different websites, as well as links to the stories themselves -- that has recently caused the greatest stir among copyright holders.  In suits filed in both Paris commercial court and U.S. federal court, news service Agence France-Presse (AFP) has alleged that Google "reproduce[s] and publicly display[s] AFP's photographs, headlines, and story leads" without its permission.  And while AFP's cases are still working their way through the courts, the Belgian Court of First Instance on February 13 upheld its earlier finding that Google's posting of snippets from German and French language news stories, along with its provision of "cached" copies of older articles that news outlets often sell, infringed upon the copyright of Copiepresse, an association of Belgian publishers.

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