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Sony BMG Learns: Don't Mess With Texas!; Federal Court Stops Bo Jackson
December 20, 2005
SONY BMG LEARNS: DON'T MESS WITH TEXAS!
The Texas Attorney General has recently filed suit against Sony BMG Music Entertainment, contending that Sony's XCP technology (an antipiracy technology) damages consumers' computers. The case was filed under the Texas antispyware law.
The XCP technology restricts to three the number of times a user can copy a disc. CDs with XCP would automatically install the copy-protection program when the CDs were inserted in the PC, prior to the user transferring the music to an iPod, or similar device. According to the lawsuit, Sony added the technology to more that more than 50 compact discs. About 4.7 million had been made and 2.1 million sold. CDs that had XCP included releases by Van Zant, The Bad Plus, Neil Diamond and Celine Dion (Haven't people who bought a Celine Dion CD suffered enough?). Sony recalled the discs last week.
Greg Abbot, the Texas attorney general, accuses Sony BMG of secretly installing spyware in the form of files that mask other files Sony installed as part of XCP. According to the complaint, this "cloaking" component can leave computers vulnerable to viruses and other security problems.
Under Texas law, "spyware" includes programs that are installed without users' full knowledge and consent, whether or not they actually spy on a user's activities. The Texas antispyware law allows the state to recover damages of up to $100,000 for each violation. Abbott said there were thousands of violations and that any money would go to the state.
The battle between personal privacy and antipiracy rages on. We'll keep you posted.
FEDERAL COURT STOPS BO JACKSON
A federal judge in Illinois recently accomplished a feat that very few NFL defenses were ever able to - stop Bo Jackson in his tracks. The court found that the Illinois court lacked jurisdiction to hear Jackson's defamation suit against a California Website that had published an unflattering article about him.
The key factual point for the court was the fact that the Website was "passive" for Illinois residents, despite the fact that it was "interactive" for California residents. Jackson, an Illinois resident, brought a lawsuit in federal court in Illinois, against a Riverside, California newspaper over an article that Jackson contended defamed him. Before it could even consider Jackson's claim, though, the Illinois court had to decide whether it had personal jurisdiction over the California newspaper.
In reaching its decision, the court looked to several factors. First, the court noted that Illinois was not the "focal point" of the article. The newspaper did not contact Illinois sources, did not focus the story on Illinois or on any event that occurred in Illinois, and did not even know that the plaintiff resided in Illinois. The court found that few copies of the printed newspaper were circulated in Illinois and no Internet newspaper subscribers resided in Illinois.
Ironically, the court found that because Jackson enjoyed a national reputation (running over Brian Bosworth on Monday Night Football will do that), the brunt of any injury to his reputation was national, and therefore not concentrated in Illinois. Accordingly, Illinois had no particular interest in the case.
The court also considered the effect of the newspaper's Web site, and considered whether the newspaper directed its Web site at Illinois residents. The court noted that "passive" Web sites - those which have few or no interactive features - do not confer jurisdiction merely because, in this case, an Illinois resident could access the site. In this case, the newspaper directed its Web site at California residents, specifically those around Ontario, Calif. The newspaper had no Illinois residents among the subscribers to its online services. For example, while Web visitors could search for Illinois-based jobs using the newspaper's Web site, anyone searching for a job outside of California was redirected to a separate site.
Having reviewed the evidence, the court noted "Thus, it is clear that while the website may be interactive for California residents, it does not aim its services at Illinois residents," . . . haling defendants into an Illinois court based on an article regarding a local California forum posted on a local California website would offend notions of due process."
In short, Bo knows many things, but apparently federal jurisdiction is not one of them.
Graydon Head & Ritchey Opens New Office in West Chester!
Butler/ Warren Office
7759 University Dr.
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West Chester, OH 45069
Phone: (513) 755-9500
Fax: (513) 755-9588
Downtown Cincinnati
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p: (513) 621-6464
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If you have questions about any of the above information, please contact Jack Greiner at 513-629-2734 or jgreiner@graydon.com.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.