MGM Studios Inc. v. Grokster, LTD.
This landmark case involved the issue of secondary liability for copyright infringement based on unlawful uses made of file-sharing software distributed by Grokster and StreamCast. Attorneys from Cooley's Intellectual Property Litigation and Internet Law practice groups filed an amicus brief in the United States Supreme Court on behalf of nine emerging technology companies. The brief urged the Court to preserve the test for contributory copyright infringement established in Sony Corp. of America v. Universal Studios, Inc., which presently balances the relative interests of copyright holders, existing and emerging technology companies, and the public. The brief also argued that MGM's proposed test for infringement required a complex after-the-fact liability analysis and, as compared to Sony's simpler before-the-fact test, would increase the legal uncertainty for inventors, entrepreneurs, and investors deciding whether to pursue commercialization of a new technology. The Court's unanimous opinion cited the Cooley-authored brief (125 S. Ct. 2764, 2775 (2005)), and Justice Breyer's concurring opinion sounded many of its themes.
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Napster Inc.
Napster retained Cooley's New York office to manage all aspects of the seminal MDL copyright litigation in federal district court in San Francisco—a case with far-reaching implications for both the entertainment industry and the Internet. On behalf of Napster, we successfully argued that sufficient evidence of copyright misuse by the plaintiffs existed to warrant full-fledged discovery on the issue of whether the recording industry plaintiffs were barred from accusing Napster of contributory copyright infringement. While Napster declared bankruptcy, thus ending the Napster litigation, we continue to advise a former officer of Napster with respect to ongoing litigation.
1-800 Contacts v. WhenU.com
We successfully represented WhenU.com, Inc., an online advertising company, in a series of lawsuits alleging that its online advertisements infringe the trademark and copyrights of Website owners. In 1-800 Contacts v. WhenU, the United States Court of Appeals for the Second Circuit ruled that WhenU's software-generated advertising does not constitute a trademark "use" as a matter of law. The Court of Appeals reversed the district court's preliminary injunction order and directed it to dismiss the trademark infringement claims with prejudice. The case attracted a number of amici, and the decision has received widespread attention in the media.
WhenU.com, Inc. v. The State of Utah
When the State of Utah passed the "Spyware Control Act," a law that would have had far-reaching consequences for WhenU and other legitimate Internet businesses, we commenced an action in Utah state court, asserting that the Act is unconstitutional and barred by copyright preemption. The Utah court agreed, and enjoined the Act from going into effect on the ground that it violated the Commerce Clause.
eBay v. Bidder's Edge
In a case of first impression, forwarding a novel theory of the centuries-old trespass to chattels doctrine, we obtained a preliminary injunction on behalf of eBay against a competitive website that was scraping data from eBay's site. This ruling allowed eBay to safeguard its site against intrusion by robots and spiders.
eBay v. Gentry
We won dismissal of a complaint alleging that eBay was liable for counterfeit sports memorabilia traded on its website.
eBay v. Grace
We won dismissal of a complaint seeking to hold eBay liable for defamatory statements made by one eBay user regarding another. The grounds advanced in support of dismissal included immunity under 47 U.S.C. § 230, part of the Communications Decency Act, and eBay's user agreement. We also defeated a claim for liability under Section 17200 of California's unfair competition statute based on alleged failure to ensure the user's compliance with state tax laws. The dismissal was affirmed on appeal on the ground that eBay's user agreement barred the suit.
Perfect 10, Inc. v. iBill, LLC
On behalf of our client Internet Billing Company, LLC (iBill), we obtained a favorable ruling on summary judgment regarding claims that iBill, an online payments processor permitting third-party websites to accept credit card payments, was liable for copyright infringement and other alleged wrongs by the sites using its service. The court held that iBill was protected by the safe harbor provisions of the Digital Millennium Copyright Act as well as the Communications Decency Act, 47 U.S.C. § 230, and dismissed Perfect 10's copyright, contributory copyright, unfair competition, and false advertising claims against iBill.
Ryan v. Carl Corp.
In this test case and copyright class action on behalf of freelance authors, we represented the defendants who provided a document delivery service pursuant to which published articles were provided to libraries and researchers. The issues included the rights of compilation publishers, fair use, availability of class action procedures, and remedies; some of the issues related to issues addressed by the U.S. Supreme Court in the contemporaneous case of New York Times v. Tasini, 533 U.S. 483 (2001). While the case was on a certified interlocutory appeal to the U.S. Court of Appeals for the Ninth Circuit and after briefing, the case was settled and the settlement was approved by the U.S. District Court for the Northern District of California.
ViroLogic, Inc. (Now Monogram Biosciences, Inc.) v. Doe
We represented a biotechnology company in a case alleging that an anonymous poster on a Yahoo! message board disclosed confidential company information. On an issue of first impression—at the intersection of the First Amendment, the Due Process Clause, and California's anti-SLAPP statute—we achieved an appellate ruling that our client's due process rights were violated by a trial court order that disallowed outside counsel from revealing the defendant's identity to company executives for purposes of responding to the defendant's anti-SLAPP motion to strike the complaint. The decision in this case, which one news report called "groundbreaking," may be found at: ViroLogic, Inc. v. Doe, Nos. A101571, A102811, 2004 WL 1941335 (Cal. Ct. App. Sep. 1, 2004).
Kathleen R. v. City of Livermore
The City of Livermore, California was sued for declaratory and injunctive relief by a parent whose minor son downloaded allegedly offensive material from the Internet using a public library computer. The library had a policy allowing all users unrestricted Internet access, and used no blocking or filtering software. On appeal, we authored an amicus brief and presented oral argument on behalf of over 100 California counties, cities, and municipal entities. In this case of first impression, the California Court of Appeal embraced our argument that the plaintiff's state-law claims were preempted by 47 U.S.C. § 230, part of the federal Communications Decency Act, which had most often been applied to provide immunity to Internet Service Providers such as AOL. The court also accepted our argument that § 230 immunity is not limited to tort cases or claims for monetary damages. The case has been cited in several subsequent cases and secondary authorities on these points.
Reno v. ACLU
In this landmark case, we represented Wired and HotWired (and one of the five trial witnesses) in both the three-judge trial court and the U.S. Supreme Court, which held that the First Amendment protects so-called "indecent" communications on the Internet, notwithstanding the Communications Decency Act.
ApolloMedia Corp. v. Reno
In a special three-judge court and the U.S. Supreme Court, we successfully challenged application of the Communications Decency Act to communications that were both "indecent" and communicated with an intent to "annoy," as distinguished from threaten or harass, thus upholding the online forum of www.annoy.com.
United States v. ApolloMedia Corp.
In a case involving the intersection of Internet, governmental investigation, and privacy issues, we secured orders, in the U.S. Court of Appeals for the Fifth Circuit and the trial court, vacating a gag order against an Internet security provider who had been ordered to produce information in connection with a federal government investigation. We also secured attendant orders opening previously unsealed court records.
Gator.com Corp. (Now Claria Corp.) v. L.L. Bean, Inc.
We won a pathbreaking panel holding in the U.S. Court of Appeals for the Ninth Circuit that L.L. Bean's substantial business in California, including catalog, telephone, and website sales, was sufficient to establish general jurisdiction in California despite its claim of "no ‘bricks and mortar' presence." The case was later settled after en banc argument and treated as moot by a divided court.
Sentius Corp. v. Flyswat, Inc.
We obtained summary judgment on patent invalidity and noninfringement in a case alleging that Flyswat's hyperlinking software infringed claims of a patent owned by Sentius and allegedly covering systems and methods for linking multimedia data to reference material for display to computer users.
Marvel Enterprises, Inc. v. NCsoft Corp.
Cooley defended NCsoft and NC Interactive, publishers of the popular online game "City of Heroes," against claims that the game can be used to infringe Marvel's copyrighted characters and that the Digital Millennium Copyright Act provides no defense. "City of Heroes" lets players create their own super heroes and send them into cyberspace to interact with others. In our first time before the judge, the court threw out five of the six trademark infringement claims without leave to amend. As the case neared trial, the parties reached an extremely favorable settlement for our clients, whereby they can continue providing "City of Heroes" without change.
Cairo, Inc. v. CrossMedia Services, Inc. (Now ShopLocal LLC)
In a precedent-setting, online contracting case, Cooley obtained a dismissal at the pleading stage for CrossMedia Services, Inc. (now known as ShopLocal LLC) on the basis of a venue selection clause in a contract formed as a result of robotic crawling of a Website. CrossMedia and Cairo operate competing local shopping Websites. CrossMedia converts retailers' local ads to a searchable, online format, and Cairo uses a software robot to copy those ads, extract location and pricing information and create links to the ads from its own site. After CrossMedia demanded that Cairo cease its copying, Cairo filed for declaratory relief. CrossMedia posts terms of use on its Websites, which contain a forum selection clause giving state and federal courts in Chicago exclusive jurisdiction over legal disputes arising under the contract. CrossMedia moved to enforce that clause and dismiss Cairo's compliant. The judge applied the long-established law of unilateral contract and ruled that accepting an offered benefit (access to CrossMedia's site) with knowledge of the terms of the offer bound Cairo to the terms, whether it clicked on a button or not. Cairo appealed the decision to the Ninth Circuit and subsequently abandoned that appeal.
CrossMedia brought its own action against Cairo in early 2006 based on the Computer Fraud and Abuse Act, breach of contract, trespass and unjust enrichment. After Cairo's motion to dismiss one count of the complaint was denied, the case settled and a consent order was entered, preventing further robotic access to the ShopLocal Website.