Cyberspace October 2011

Facebook in the courts
A USA court recently ordered a defendant to return his Facebook page to its original, allegedly infringing, state on the grounds that there was spoilation of evidence. In Katirol Co., Inc. v Kati Roll & Platters, Inc (http://goo.gl/P5sJM) the USDC in New Jersey dealt with a claim for sanctions against the defendant who had removed his profile picture which infringed the plaintiff’s intellectual property rights. The plaintiff issued a a take down request, and the defendant complied, but the plaintiff wanted the picture put back on Facebook so it could obtain PDFs of the evidence. The court held that the defendant had “spoiled” the evidence by modifying the Facebook pages. The defendant argued that it was a public site and the plaintiff could have PDFd the pages at any time. However, because the pages were in the control of the defendant it had a duty to preserve them for the purposes of the litigation. The pages were put back in the original state for a short time so that the plaintiff could PDF them for evidence.

In State of Connecticut v Robert Eleck (AC 31581) the Conn Court of Appeal dealt with a claim that the trial judge erred in not admitting (attacking credit) a Facebook printout documenting messages sent to him by a victim after an assault. The victim admitted that the Facebook account used was hers, but denied that the messages were sent by her. She claimed that the account had been hacked, the password changed, and she was locked out. The appeal point turned on whether Eleck could authenticate the authorship of the messages to the required standard. The court considered a similar case involving MySpace where messages were excluded due to lack of appropriate evidence.


A key point was that “we recognize that the circumstantial evidence that tends to authenticate a communication is somewhat unqiue to each medium.” The evidence required will differ for a telephone call, paper, email or other medium. The court held that there was insufficient evidence to connect the victim to the messages. 

Who’s the defendant?
You may recall that New Zeland has enacted the Copyright (Infringing File Sharing) Amendment Act, which provides for simplified actions against internet account holders, but has the very real risk of punishing the wrong person. This was discussed in Boy Racer, Inc., v Doe (USDC Calif C-11-02329 PDG)  (http://goo.gl/fnaHD). The Plaintiff (a copyright owner) used a BitTorrent monitoring tool and discovered that a computer at a certain IP address was torrenting one of its works. The Plaintiff’s lawyer stated in a court filing 

“At this time, the remaining unidentified Doe Defendant ... who used IP address 173.67.109.59 to illegally infringe on Plaintiff’s copyrighted works has not been served for the simple reason that he has yet to be identified.  

While Plaintiff has the identifying information of the subscriber, this does not tell Plaintiff who illegally downloaded Plaintiff’s works, or, therefore, who Plaintiff will name as the Defendant in this case.  It could be the Subscriber, or another member of his household, or any number of other individuals who had direct access to Subscribers network.  ... Plaintiff will require further discovery in this case, including  Federal Rule of Civil Procedure 34 Request for Production of Documents and Things.  That FRCP 34 Request will specifically ask to inspect Subscriber’s computer, and all those computers that subscriber has reasonable control over/access to (my emphasis), for the limited purpose of discovering who accessed the BitTorrent protocol, entered a swarm containing a File with Plaintiff’s copyrighted video, and unlawfully downloaded it.  Of course, Plaintiff’s discovery will stop there” 

I couldn’t say it any better.


© 2011 Andrew Calvin