by Lee Gesmer | Aug 3, 2012 | CFAA
Yet another federal appeals court has attempted to parse the Computer Fraud and Abuse Act’s (“CFAA”) ambiguous statutory language. The issue, on which the federal courts cannot agree, is whether an employee who has authorized access to a computer, but uses that access for an illegal purpose — typically to take confidential information in anticipation of resigning to start a competing company or join one — violates the CFAA.
The controversy is focused on the words “without authorization” and “exceeds authorized access” in the law:
[Whoever] knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value … shall be punished. 18 U.S.C. § 1030(a)(4).
Late last year, in a widely noted decision, the 9th Circuit adopted the “narrow” view of the CFAA, holding the law does not extend to an employee who has authorized access but uses that access to make unauthorized use. U.S. v. Nosal (en banc).
In late July the Fourth Circuit issued a decision in WEC Carolina Energy Solutions v. Miller, agreeing with Nosal and holding that conduct by an employee that violates the employer’s “use policy” (typically contained in an employee manual, handbook or “computer use policy”) does not give rise to a violation of the CFAA. As Fourth Circuit stated, “we reject an interpretation of the CFAA that imposes liability on employees who violate a use policy, choosing instead to limit such liability to individuals who access computers without authorization or who obtain or alter information beyond the bounds of their authorized access.”
Under the Fourth Circuit’s interpretation of the statute, (1) without authorization refers to a situation where someone is not authorized to access a computer and accesses it, and (2) exceeds authorized access applies when someone has “approval to access a computer, but uses his access to obtain or alter information that falls outside the bounds of his approved access.”
Under the “broad” view of the CFAA, which has been rejected by the Ninth and Fourth Circuits, employees who have authorized access to a computer, but who exceed the scope of that access, are subject to liability under the statute. The First Circuit, where I practice, has adopted this view of the law. EF Cultural Travel v. Explorica (2001).
There is now a clear circuit conflict over the interpretation of this law. The Ninth and Fourth Circuits read it narrowly, and several other circuits (including the First), apply it broadly. Often, a circuit split over the meaning of a federal statute provides a basis for the Supreme Court to grant review and break the tie. The betting is that this will occur here.
Why does any of this matter? Because in a civil case it enables a plaintiff to get a case that typically rests on state claims, such as conversion, misappropriation of trade secrets or breach of fiduciary duty, into federal court, a venue often preferred by plaintiffs.
Update: The government will not appeal the 9th Circuit decision in the Nosal case. Link to Motion for Issuance of Mandate here.
by Lee Gesmer | Aug 2, 2012 | Patents
The Internet has made following trials in real time feasible, more or less. For the press to cover controversial trials is nothing new, but in the past these were mostly criminal cases. Today, thanks to sites like groklaw.net, people can follow technology industry cases in detail – descriptions of what is going on in the courtroom, documents and (in the case of groklaw), unsparing commentary.
Groklaw is following Apple v. Samsung from a distance (at least compared to its recent coverage of Oracle v. Google), and the traditional press appears to be covering the case heavily, but only at a general level of detail. However, someone has put together a twitter feed consolidating the tweets of several industry reporters. It’s almost like a shadow jury, but a jury of people more knowledgeable about the companies involved than the average juror. And, in some cases, openly opinionated.
The lawyers involved in this case, and certainly in any case covered in detail by groklaw, must dread the possibility that jurors are reading these materials.
The twitter feed is here.
by Lee Gesmer | Aug 2, 2012 | Patents
It seems that Google’s “bounce back” patent is going to play a big role in the trial between Apple and Samsung, underway in federal district court in Palo Alto. References to it in Apple’s opening statement highlighted this patent. I wasn’t sure what the “bounce back” was, but I think I’ve tracked it down.
How do you know that you’ve reached the bottom or top of a page on an iPhone or iPad? The screen “bounces back” in the opposite direction. Or, as described in patentese in U.S. patent 7,469,381, issued to Apple in December 2008:
In accordance with some embodiments, a computer-implemented method for use in conjunction with a device with a touch screen display is disclosed. In the method, a movement of an object on or near the touch screen display is detected. In response to detecting the movement, an electronic document displayed on the touch screen display is translated in a first direction. If an edge of the electronic document is reached while translating the electronic document in the first direction while the object is still detected on or near the touch screen display, an area beyond the edge of the document is displayed. After the object is no longer detected on or near the touch screen display, the document is translated in a second direction until the area beyond the edge of the document is no longer displayed.
The patent is titled, List scrolling and document translation, scaling, and rotation on a touch-screen display.
“Bounce back” is a far more jury-friendly term than “an area beyond the edge of the document is displayed . . . .” Whether Apple can withstand Samsung’s challenge to the validity of this and other patents is the real question.
by Lee Gesmer | Aug 1, 2012 | Copyright
One of the thorny issues that comes up in copyright cases is whether a dispute actually falls under federal copyright law. What the plaintiff may claim to be copyright infringement the defendant may argue is a breach of contract, or vice versa. If copyright law does control, any state law claim based on rights that are the equivalent of those protected by the Copyright Act are preempted, and must be dismissed. A common example is breach of contract: if copyright law applies, a claim for breach of contract is likely to be preempted.
The consequences of a ruling one way or the other on this issue can have strategic consequences (whether the case proceeds in federal or state court) or substantive (the standard for liability, or the measure of damages). One context in which this issue arises involves idea submission – where the plaintiff pitches an idea idea hoping to persuade the recipient to purchase the idea for commercial development. When the defendant allegedly uses the idea to create a copyrightable work, is the claim one of copyright infringement or breach of an “implied contract”?
This was the issue in Forest Park Pictures v. Universal Television Network, Inc., decided by the Second Circuit in June. Actor Hayden Christensen had pitched Universal on a TV show about a concierge doctor to the rich and famous. He claimed that Universal breached an “implied contract” when it created the series Royal Pains, and then refused to compensate him. Universal argued that the dispute should be governed by copyright law, and therefore any state law claims (such as Christensen’s claim for breach of implied contract) were preempted. The Second Circuit disagreed with Universal (and the trial court), holding that a breach of implied contract claim concerning an idea was not preempted by copyright law, and therefore the case could proceed on the state law theory of breach of an implied contract.
One strategic consequence, in the context of this case, is that it may be more difficult for a defendant to persuade a court to dismiss an implied contract case case before trial, than a copyright case. In this regard, see my recent post, noting that the courts are receptive to a motion to dismiss a copyright claim if a comparison of the original and alleged infringing works can resolve the question of substantial similarity. Therefore the ruling in this case likely favors the plaintiff’s ability to avoid dismissal before trial.
Forest Park Pictures v. Universal Television Network, Inc.
