Intellectual Property Law

After taking some time off around the American Bar Association's annual meeting in Hawaii, the IP Blawg is back!  While it can be difficult to concentrate on CLE courses and committee meetings with the lure of the beach in the background, the IP Blawg is proud to say it was in attendance when the Intellectual Property Litigation Committee held its bright and early breakfast meeting in Honolulu.  The panel discussed ways of dealing with ?Anonymous Internet Mischief,? and the First Amendment problems that are necessarily implicated when clients come under attack via cybersmear such as mass email campaigns, ?spoof? web sites, posts on public bulletin boards like Yahoo! Finance, video uploads on YouTube, or even blogs.  While a frequent initial response is to contact the Internet Service Provider (?ISP?) hosting the page in question and ask it to take down the defamatory or confidential information pursuant to the Digital Millennium Copyright Act?s notice and takedown provisions, a more permanent solution may require the taking of action against the scandalous poster.  In such cases, a big challenge is to identify the pseudonym-using poster, which is most often accomplished by filing a lawsuit against ?John Doe? defendants and serving a subpoena on the ISP to discover the source of the postings at issue. 

As discussed at breakfast, the standard for getting a subpoena varies widely by jurisdiction, ranging from a good faith standard, In re Subpoena to AOL, 52 VA. Cir. 26 (2000), a motion to dismiss standard, Rammuno v. Cawley, 705 A.2d 1029 (Del. 1998), a weighing competing factors standard, Sony Music Enter?t v. Does 1-40, 326 F.Supp. 2d 556 (S.D.N.Y. 2004), and even a summary judgment standard in Delaware, John Doe v. Cahill, 884 A.2d 451 (Del.2005).  Most federal courts weigh the competing factors of whether plaintiff has pled a prima facie case of harm, the specificity of the requested discovery, the lack of an alternative method for getting the information sought, the central need for the discovery, and the defendants? expectation of privacy.  Dendrite Intern?l v. Doe, 775 A.2d 756 (N.J. Super. 2001).   

Keep up on the latest IP happenings with both the IP Blawg and the Intellectual Property Committee of the ABA's Section of Litigation.  Aloha!

Today's Blawger:  Nan Joesten