Vogel Internet, Information Technology and e-Discovery Blog : Texas Internet, Information Technology, eCommerce & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

Only 5% of all adults used Social Media in 2005 when Pew Research first asked, and as ofAugust 2011 Pew now reports more than 65% of all adults use Social Media. To be more precise about what going on with online adults here’s the daily breakdown from another Pew report:

92% use search engines
92% send or read email
76% get news online
71% buy a product online
65% use Social Media

So even though 65% of users are active with Social Media, 92% are busy with search engines and email, here are even more interesting details about the demographics of Social Media users:

As of May 2011, there are no significant differences in use of social networking sites based on race and ethnicity, household income, education level, or whether the internet user lives in an urban, suburban, or rural environment.

In many ways it’s not a surprise about this evolution of Social Media and Internet activity, but clearly we recognize there are more radical cultural and legal changes are in our future.

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Copyright protection extends to cloud music lockers based on a new federal court ruling. US District Judge William H. Pauley III in New York granted judgments in favor of MP3tunes and Michael Robertson on August 22, 2011 under the Digital Millennium Copyright Act (DMCA) since MP3tunes complied with the DMCA safe harbor provision by taking down music that violated the Copyrights of others. EMI and 14 record and music companies brought a Copyright infringement claim against MP3tunes and Robertson and won on certain claims regarding infringement, but lost on the music locker claims.

My friend Rob Spiegel wrote an interesting eCommerce Times article about this case.

With the advent of Apple’s iCloud and the music lockers of Google and Amazon Judge Pauley’s ruling is significant.
 

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In 2009 Google started offering legal research and eDiscovery services (Postini), and now Google announced that it invested $18.5 million in RocketLawyer.com which bills itself as the “fastest growing online legal service.” Forbes reported that RocketLawyer.com founder Charley Moore:

…the firm has 70,000 users a day and has doubled revenue for four years straight to more than $10 million this year.Rocket Lawyer provides online legal forms, from wills to Delaware certificates of incorporation, that non-lawyers can fill out and store and share on the Web. For $19.95 a month, consumers can also have their documents reviewed by a real lawyer and even get legal advice at no additional cost.

Obviously Google sees the legal business as the place to be, and likely portends changes in how legal services are provided.
 

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Within 10 days of the riots in the UK a judge sentenced two young men, 20 and 22, to 4 years in jail for using Facebook. Without question Social Media has transformed communications and impacted the UK riots, but one might wonder if the courts may have acted too swiftly. Here’s what the Guardian reported:

Jordan Blackshaw, 20, set up an "event" called Smash Down in Northwich Town for the night of 8 August on the social networking site but no one apart from the police, who were monitoring the page, turned up at the pre-arranged meeting point outside a McDonalds restaurant. Blackshaw was promptly arrested.

Perry Sutcliffe-Keenan, 22, of Latchford, Warrington, used his Facebook account in the early hours of 9 August to design a web page entitled The Warrington Riots. The court was told it caused a wave of panic in the town. When he woke up the following morning with a hangover, he removed the page and apologised, saying it had been a joke. His message was distributed to 400 Facebook contacts, but no rioting broke out as a result.

The Judge told the two at sentencing that their use of Facebook were “evil acts,” but many are questioning how disproportionate these sentences seem to be given all the bad players in the UK riots..

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A NY Times stock market report for August 8, 2011 highlighed the fact that Apple’s stock was the most valuable company in the world ahead of Exxon Mobil, but by the close of the day Exxon Mobil was still number one. Many stock analysts “expect Apple and Exxon Mobil to continue jockeying for the top slot while the markets remain volatile.”

I welcome you to read my August Technology Law Column at eCommerce Times entitled “Apple Mounting Trademark Challenges.”  

Given the headlines of Apple’s great market value my column was very timely to explain Apple’s legal risks at a time of great success.

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Apparently eBay wants to spread the word that it opposes an Internet sales tax. I wrote my eCommerce Times Legal Column recently about Internet sales taxes entitled “Sales Taxes on the Internet: Is This the Year We'll Pay?” I suspect that as a result of my Column, eBay's PR firm sent me the following email with a list of quotes in opposition to an Internet sales tax:

eBay Opposes Legislation Imposing New Taxes and Regulatory Burdens on Small Online Businesses

Brian Bieron, Senior Director, Federal Government Relations and Global Public Policy at eBay Inc., made the following statement upon the introduction of 'Main Street Fairness Act' bills by Senator Durbin (D-IL) and Representative Conyers (D-MI).

"A collection of state tax commissioners have again been able to get an outdated Internet sales tax bill introduced in Congress, but we are confident that it will be rejected because it would harm small Internet retailers. Better policy is reflected by H.Res. 95 from Congressman Dan Lungren (R-CA) and Congresswoman Zoe Lofgren (D-CA) with 27 bipartisan co-sponsors, which says that Congress won't give states 'the authority to impose unfair tax collecting requirements on small online businesses.'

"The giant retailers jockeying for new Internet sales taxes have national store networks that they combine with their major online sales platforms, a business model they know brings some tax collection duties. Forcing small businesses to take on the same costs and tax burdens as national retail businesses is unrealistic, unfair and will unbalance the playing field between giant retailers and small business retailers on the Internet."

The heat is on, so stay tuned for a hot summer and war against the Internet sales tax.

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GUEST BLOG FROM BARRY BARNETT

Barry Barnett has been a Guest Blogger in the past, his Blawgletter provides great thoughts, and insights. I read his blogs regularly. Over the years Barry and I have had a number of cases together and he is an outstanding lawyer. Barry is a partner at Susman Godfrey and I’m sure we will see more Guest Blogs from him in the future.

Firm Can Sue for Email Barrage, Sixth Circuit Holds

Do you wonder what you could do if someone targets your company with a torrent of calls and emails? Wonder no more. You can sue under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, which creates both criminal penalties and a civil cause of action.

So held the Sixth Circuit in Pulte Homes, Inc. v. Laborers' Int'l Union of N. Am., No. 09-2245 (6th Cir. Aug. 2, 2011).

Due to a dispute over firings by Pulte, a home-builder, a union complained to the National Labor Relations Board. It also got members to make lots of calls to Pulte and send a great many emails to some of its execs:

LIUNA . . . bombarded Pulte's sales offices and three of its executives with thousands of phone calls and e-mails. To generate a high volume of calls, LIUNA both hired an auto-dialing service and requested its members to call Pulte. It also encouraged its members, through postings on its website, to "fight back" by using LIUNA's server to send e-mails to specific Pulte executives. Most of the calls and e-mails concerned Pulte's purported unfair labor practices, though some communications included threats and obscene language.

Yet it was the volume of the communications, and not their content, that injured Pulte. The calls clogged access to Pulte's voicemail system, prevented its customers from reaching its sales offices and representatives, and even forced one Pulte employee to turn off her business cell phone. The e-mails wreaked more havoc: they overloaded Pulte's system, which limits the number of e-mails in an inbox; and this, in turn, stalled normal business operations because Pulte's employees could not access business-related e-mails of send e-mails to customers and vendors.

Pulte Homes, slip op. at 2-3.

The district court tossed Pulte's "transmission" claim under section 1030(a)(5)(A) of CFAA on the ground that the union didn't "intentionally cause damage" to a "protected computer". The Sixth Circuit begged to differ, ruling that "a transmission that weakens a sound computer system -- or, similarly, one that diminishes a plaintiff's ability to use data or a system -- causes damage." Id. at 7.

You may not think of tying up phone lines or a computer network as "damage", but CFAA defines it that way. See 18 U.S.C. § 1030(e)(8) (providing that "any impairment to the integrity or availability of data, a program, a system, or information" counts as "damage").

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