Slide1: NORTHERN DISTRICT OF ILLINOIS CYBERLAW TRENDS R. David Donoghue DLA PIPER US LLP 203 North LaSalle Street Suite 1900 Chicago, IL 60601-1293 312.368.3972 Email: david.donoghue@dlapiper.com www.chicagoiplitigation.com


What is cyberlaw?: What is cyberlaw? It is the web, but what isn’t the web? It may be trademarked Eric Menhart, CyberLaw, P.C. It is a major source of real world litigation.


Cyberlaw Trends: Cyberlaw Trends Downloading music has consequences Copyright infringement can lead to jail time Dot com’s are favorite defendants Non-practicing entities are a major force Keywords and thumbnails Virtual world – Real litigation Website content Old world content – New world tracking Craigslist Electronic Discovery


1. Downloading Music has Consequences: 1. Downloading Music has Consequences Music downloading has consequences Why not you or your clients? Individual downloaders lose Jamie Thomas – Minnesota single mother of two Jury awarded $220k = 24 songs X $9250 Potential damages -- $18k - $3.6M The Web is NOT anonymous


2. Copyright Infringement Can Lead to Jail Time: 2. Copyright Infringement Can Lead to Jail Time US Attorneys are prosecuting e-infringers Not just Microsoft anymore “Harmless” acts = Jail Law is not lenient


3. Dot Com’s are Favorite Defendants: 3. Dot Com’s are Favorite Defendants Google, Yahoo and Microsoft are frequent litigants Eolas v. Microsoft settlement ICR v. Google settlement Trend will continue as long as stock and visibility remain


3. Dot Com’s are Favorite Defendants: 3. Dot Com’s are Favorite Defendants Illinois Computer Research v. Google Google Book Search accused of patent infringement Google settled, but the case is ongoing and personal


3. Dot Com’s are Favorite Defendants: 3. Dot Com’s are Favorite Defendants ICR v. Google timeline Initial notice complaint Amended speaking complaint adding Fish & Richardson Fish answers and counterclaims against inventor Scott Harris Includes portions of the partnership agreement Harris adds claims against Fish Expedited discovery Fish attempts to amend with a sealed complaint which it says will add numerous parties including some Does all with ties to ICR’s counsel.


4. Non-Practicing Entities are a Major Force: 4. Non-Practicing Entities are a Major Force Cell Phones Locally – Motorola As cellular technology & reach grows, so does litigation Video Processing IP Innovations v. Mitsubishi IP Innovations v. Barco & Syntax-Brillian Niro Firm – ICR v. Fish & Richardson


5. Keywords and Thumbnails: 5. Keywords and Thumbnails Infringement or Fair Use? Perfect 10 v. Google 9th Circuit finds a likelihood of success re Google’s fair use defense. Issue is not settled. Sites increasingly use thumbnails for linked sites. Much like internet jurisdiction in the 90s – Courts do not know what to do


6. Virtual World – Real Litigation: 6. Virtual World – Real Litigation Convergence of Second Life and the law Posner speaks in Second Life “Virtual” law firms Real law suits over virtual property TM & CR in products designed in SL Disputes over virtual property coming to US courts


7. Website Content: 7. Website Content Disputes over CR’ed content on websites Wedding photos & family portraits Toy Trains – Thomas & Friends Pictures of copyrighted toy trains are derivative works. Copyrighted images displayed for sale Descriptions of products Smaller defendants = more bankruptcy


8. Old World Content – New World Tracking: 8. Old World Content – New World Tracking Magazine & newsletter distributors are using the internet to track CR infringement Companies that have dealt with photocopy infringement are still behind on internet infringement Read your subscription agreements Watch for spyware Buy group licenses


9. Communications Decency Act: 9. Communications Decency Act Chicago Lawyers Committee for Civil Rights Under the Law v. Craigslist Discriminatory housing advertisements (violating Fair Housing Act) “Near-unanimous” law holds that Section 230(c) provides “broad” & “robust” blanket immunity to Interactive Computer Services re third party content N.D. Ill. holds that Section 230(c) bars suits that would treat ICS as a publisher of third party content


9. Communications Decency Act: 9. Communications Decency Act CLC appealed – argument was heard last week Panel: Easterbrook, Wood & Evans Wood: Why should a non-filtering ICS should be treated differently? Easterbrook: 230 is not an immunity provision Filtering is not practical – buddhist example Evans: How could Craigslist (30M posts/month & 30 employees) filter content? Expect Section 230 related cases to be filed here until Seventh Circuit rules


10. Electronic Discovery: 10. Electronic Discovery More than ½ of litigants still are not prepared Anecdotal evidence suggests most attorneys and litigants are hiding from it Take the reigns and gain advantage Dangers – employee internet use Benefits – employee internet use Litigation holds Make a plan & make it early


Slide17: Questions? R. David Donoghue DLA PIPER US LLP 203 North LaSalle Street Suite 1900 Chicago, IL 60601-1293 312.368.3972 Email: david.donoghue@dlapiper.com www.chicagoiplitigation.com